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this presumption does not apply when: (1) The PCP is not designed, operated,

or maintained in a manner consistent with standard and reasonable practices; (2) the collateral pollutant emissions

increases are not minimized within the physical configuration and operational standards usually associated with the emissions control device or strategy; or (3) the unit will be less environmentally beneficial. Also, when a reviewing authority determines that an otherwise listed project would not be constructed and operated consistent with standard practices, it may rebut the

‘‘ environmentally beneficial ’’ presumption for that application of the technology.

Finally, it should be noted that commenters on the proposed rule list several examples of specific projects they believe we should add to the list of presumptively environmentally beneficial projects. However, some of these suggested PCP scenarios would never trigger NSR because there would not be a significant increase in emissions, from either the collateral or primary pollutant. For example, one commenter says we should consider the termination or decommissioning of an emissions unit an environmentally beneficial technology. We have never required a unit to undergo NSR before terminating operation; consequently,

there is no need for a PCP Exclusion.

Commenters raised other scenarios but provided few examples and insufficient detail from which we could draw any

conclusions. We believe that the PCP Exclusion will benefit only a subset of all PCPs undertaken at existing sources, in part because most control projects

will not cause an emissions increase of any criteria pollutant and, thus, will not trigger NSR. As always, major NSR only applies to your physical or operational changes that result in a significant net emissions increase at your source.

b. What is Meant by ‘‘ Environmentally Beneficial ’’ ?

The WEPCO PCP Exclusion defines a

PCP as ‘‘ any activity or project undertaken . . . for purposes of reducing emissions. ’’ § 52.21(b)(32). We have explained that ‘‘ EPA expects that most, if not all, pollution control projects will reduce net actual

emissions. ’’ 57 FR 32319 (1992). The

WEPCO PCP Exclusion therefore

‘‘ avoids the need to undertake a quantitative emissions increase calculation in every case ’’ that a facility prepares to undertake a PCP. Rather, in recognition that while a PCP ‘‘ could theoretically cause a small collateral
increase in some emissions, it will substantially reduce emissions of other pollutants, ’’ the rule contemplates that sources proposing PCPs that are not

listed will determine in the first instance whether they are entitled to the

PCP Exclusion based on the ‘‘ project ’ s net emissions and overall impact on the

environment. ’’ Id. at 32321. Nevertheless, ‘‘ the reviewing authority can require additional modeling under

certain circumstances to evaluate the air quality impact of a [PCP]. ’’ Id.

As for the WEPCO PCP Exclusion,

‘‘ reducing emissions ’’ is the bedrock of

the PCP Exclusion. For the list of PCPs in today ’ s regulation, we are satisfied that the net impact on the environment from these projects is beneficial because of our broad experience with these technologies. Consequently, such projects are desirable from an environmental protection perspective,

and we have no reason to doubt the validity of the ‘‘ environmentally

beneficial ’’ presumption when such controls are applied to existing sources

consistent with standard and reasonable practices.

For those projects not listed in Table 2, there is no presumption as to whether or not the projects are environmentally beneficial, and therefore the PCP Exclusion is not self-executing. On a case-by-case basis, your reviewing authority must consider the net

environmental benefit of a non-listed project and approve requests for the PCP Exclusion for a specific application of the project upon a showing that it is environmentally beneficial. You must receive this approval from your reviewing authority before beginning

actual construction of the PCP. This approval must be conducted through a SIP-approved permitting process that conforms to the requirements of
§§ 51.160 and 51.161, including a requirement for a public hearing and 30- day public comment period on all aspects of the project. This includes an opportunity for the public and EPA to

review and comment on the environmental benefits analysis and the air quality impacts assessment. The reviewing authority ’ s evaluation of the project ’ s net environmental benefits is limited to air quality considerations; specifically, the air quality benefits of emissions reductions of the primary pollutant must outweigh any

detrimental effects from emissions increases in the collateral pollutant, when comparing the unit ’ s post-change emissions to its pre-change baseline actual emissions. Also, the reviewing authority ’ s decision on a case-specific approval of a PCP Exclusion does not serve to proclaim that a given technology is environmentally beneficial for purposes of subsequent PCP Exclusion applications for the same technology.

We may add non-listed control devices, work practices, and pollution prevention projects to the approved list, such that a previously non-listed project can be considered for a self-executing PCP Exclusion. The technology must be reviewed by us to ensure that the project ’ s overall net impact on the

environment is indeed beneficial. Our evaluation would hinge on the same

factors mentioned above for the reviewing authority ’ s case-by-case

reviews. Once ‘‘ listed, ’’ a subsequent project could be presumedenvironmentally beneficial unless casespecific factors or impacts would

indicate otherwise.

Today ’ s rule also provides more guidance in this rule on what constitutes an environmentally beneficial fuel switch. In general, we

lack sufficient information from which to categorically determine that a switch

to solid fuel will be ‘‘ inherently less polluting. ’’ For instance, switching from oil to woodwaste may decrease sulfur emissions while increasing particulate emissions. Switching between solidfuels, such as coal, woodwaste, or tirederived fuels, must therefore be evaluated more closely before we can

determine whether such a switch could qualify as an environmentally beneficial PCP. Accordingly, we specify which fuel switches are presumptively

available for the PCP Exclusion.

c. Why are not More Pollution Prevention Projects Presumed Environmentally Beneficial?

Switching to a less polluting fuel or to a less potent quantity of ODS are prime examples of pollution prevention projects, and both are already listed as presumptively environmentally beneficial. However, some commenterspoint out that there are far more end-ofpipe, add-on technologies that are listed as environmentally beneficial and

recommend that we include more pollution prevention technologies. Although we fully support and encourage pollution prevention projects and strategies, special care must be taken in evaluating a pollution prevention project for the PCP Exclusion. Pollution prevention projects tend to be dependent on site-specific

factors and lack an historical record of performance, which proves problematic in deciding whether they are environmentally beneficial when applied universally. We believe that

both add-on control devices and pollution prevention projects have equal chances of being presumed environmentally beneficial, but we have


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more data and history with the add-on control equipment, and this is why the list includes more of those types of pollution strategies. Pollution prevention projects can still qualify as environmentally beneficial PCPs, but they must be evaluated by the reviewing authority to confirm their

environmental benefits.

d. How are Control Technologies and Pollution Prevention Strategies Added to the Presumptively ‘‘ Environmentally Beneficial ’’ List?

The proposal would have allowed the reviewing authority to add to the list of presumptively environmentally beneficial technologies, as long as it determined that a project had been

‘‘ demonstrated in practice ’’ and was comparable in effectiveness to the listed technologies on a pollutant-specific

basis. We will continue to allow new control technologies that are demonstrated in practice to be added to the list of presumed environmentally beneficial technologies. However, unlike the proposed PCP Exclusion, we will not require that non-listed technologies be comparable in effectiveness on a pollutant-specific

basis with the emissions reduction efficiency of currently listed technologies in order to qualify as environmentally beneficial, since this is difficult to compare when different pollutants must be considered. Also, today ’ s rule vests the EPA Administrator with the sole authority to approve non-listed pollution strategies as presumptively environmentally beneficial. The reviewing authority may perform a case-specific approval of a

PCP Exclusion in which it would determine that a non-listed technology is environmentally beneficial, but that determination only pertains to the particular case under evaluation and would not serve to presume that the technology is environmentally beneficial for subsequent applications.

Through notice and comment rulemaking, we will maintain and update the list as we deem additional technologies to be environmentally beneficial or to remove from the list any PCP that we erroneously listed.

Several commenters on the proposal suggest that we create a clearinghouse for newly added environmentally beneficial PCPs. We agree that additions to the approved PCP list need to be readily available to the public; however, since rulemaking will be used to add new PCPs to the approved list, no additional public notice will be

necessary.

e. How do I Calculate Emissions

Increases? In order to calculate emissions increases for primary and collateral pollutants for the purpose of determining the environmental impactof the PCP, you must use the actual-toprojected-actual applicability test method for calculating the emissions

increase. This test is discussed in section II of today ’ s preamble, and is consistent with the remainder of today ’ s rule revisions.

f. How do you Perform the Emissions Calculation for Switches to a Less Potent Amount of ODS?

We have determined that activities or projects undertaken to accommodate switching to an ODS with less potential for stratospheric ozone damage are presumptively environmentally beneficial, as long as the productive capacity of the equipment does not increase as a result of the activity or project.

For determining your emissions before and after the change, you must perform a weighted comparison of the switch based on ozone depleting potential (ODP), taken from 40 CFR part 82, and the past and projected future usage of each ODS. In cases where we have expressed a chemical ’ s ODP in 40 CFR part 82 as a range, the most conservative value (that is, the upper bound value) should be used. The replaced ODP-weighted amount is then calculated by multiplying the baseline actual usage (using the annualized average of any 24 consecutive months of usage within the past 10 years) by the ODP of the replaced ODS. The projected ODP-weighted amount is computed by multiplying the projected future annual usage of the new substance by its ODP. The following example illustrates how

to make these calculations in determining whether a switch to a different ODS is environmentally

beneficial.

Example: Source plans to replace solvents in its batch process line. Its current solvent,

CFC

– 12, a chlorofluorocarbon (CFC) with an ODP of 1.0, is emitted at 200 tpy. It will be substituted with a less potent solvent, a hydrochlorofluorocarbon (HCFC) with an ODP of 0.02. As a result of this change, the straight mass emissions coming from the

solvent will increase twofold due to the new process solvent having a higher vapor pressure than the old solvent. However, this substitution most likely would be viewed asenvironmentally beneficial, since the ODPweighted emissions would reveal a decreased risk in environmental harm. Specifically, the

CFC

– 12 would be multiplied by its ODP of1.0, resulting in 200 tpy for pre-change ODPweighted emissions. In contrast, the 400 tpy of HCFC emissions would be multiplied by 0.02, giving it a post-change, ODP-weighted emission level of 8 tpy. The net effect is anemissions decrease of 192 tpy on an ODPweighted basis. g. Should Cross-Media Impacts be

Considered in the ‘‘ Environmentally Beneficial ’’ Demonstration?

By definition, a PCP reduces emissions of air pollutants subject to regulation under the Act. Therefore, while the primary environmental

benefit of the PCP would be to reduce air emissions, a secondary benefit could be reducing pollution in other media. However, these cross-media tradeoffs are difficult to compare, so it is difficult to weigh their importance in appraising

the overall environmental benefit of a

PCP. We solicited comments in theproposal on how to compare crossmedia pollution, but we received no suggestions on how to design such a system. As a result, we have determinedthat it is inappropriate to consider nonair impacts when considering whether projects, activities, or work practices qualify for the PCP Exclusion.

3. Air Quality Impacts

a. What is the ‘‘Cause-or-Contribute

Test ’’ ?

Another criterion for qualification for

all PCPs is that the emissions from the

PCP cannot cause or contribute to a violation of any NAAQS or PSD increment, or adversely impact an AQRV (such as visibility) that has been identified for a Federal Class I area by an FLM, and for which information is available to the general public. This has

been called the ‘‘ cause-or-contribute

test. ’’ We continue to believe that the

PCP Exclusion must include such safeguards to ensure protection of the environment and public health. In the WEPCO PCP Exclusion, we said that the reviewing authority ‘‘ under certain

circumstances ’’ may evaluate the air quality impact of a PCP. 57 FR 32321. Generally, these circumstances would include large secondary emissions

increases in areas that are nonattainment, or marginally in attainment, for the pollutant in question. We anticipate, however, that such analyses would not normally be required, since collateral emissions increases from most relevant projects

will be so small that additional modeling should not be required.

Commenters from industry complain that determining whether there would be an adverse impact on an AQRV is too difficult and believe that the proposal is ambiguous in defining roles of FLMs and reviewing authorities. The intention of the statutory structure for preconstruction permit review in section 165(d) of the Act unambiguously is to protect against any adverse impact on AQRVs in Class I lands. Therefore, we continue to believe that any air


### 80237 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

quality assessment for a PCP should consider all relevant AQRVs in any Class I area that are identified by the FLM at the time you submit your notice or permit application for the project. For purposes of those projects on the list of projects presumptively qualifying for the PCP Exclusion, we are limiting the consideration of AQRVs to those that have already been identified by an FLM

for the Federal Class I area. You should

check with the National Park Service website and other public information to determine if the FLM has already identified an AQRV for a nearby Class I area. If you are required to obtain both approval from your reviewing authority and a permit before beginning actual construction of your project, then additional AQRVs may be identified by an FLM consistent with the procedures provided for in that permitting process.

b. What is Necessary for the Air Quality Impacts Analysis?

Reviewing authorities can require you to analyze your air quality impacts whenever they have reason to believe that: (1) the project will result in a significant emissions increase of any criteria pollutant over levels in the most recent analysis; and (2) such an increase

would cause or contribute to a violation of any NAAQS or PSD increment or adversely impact an AQRV (such as visibility) that has been identified for a Federal Class I area by an FLM and for

which information is available to the general public. The analysis must contain sufficient data to satisfy the reviewing authority that the new levels

of emissions will not cause or contribute to a violation of the NAAQS or PSD increment, or adversely impact an AQRV (such as visibility) that has been identified for a Federal Class I area by

an FLM and for which information is available to the general public. If the air quality analysis shows that a resulting violation is foreseeable, your project

cannot receive the PCP Exclusion.

Many industry commenters complain that the proposed air quality analysis and Class I provisions for the exclusion were overly burdensome and needed to

be either eliminated or streamlined. We agree in part with this point, even though we strongly contend that there need to be safeguards to protect against misuse of the exclusion with projects that will not provide positive environmental results. Although today ’ s final rule contains the core safeguard to prevent an adverse air quality impact, a modeling exercise is not necessarily

warranted in all cases.

While you are not required to notify the FLM of any Federal Class I area located near your facility as a prerequisite for proceeding with a PCP, you must determine whether any AQRVs have been identified in these areas. FLMs have identified AQRVs for many of the Federal Class I areas and

made this information available on a dedicated web site (http://
www2.nature.nps.gov ). If no AQRVs have been identified for a particular Class I area, your demonstration is simply a statement that no AQRVs exist in Class I areas that your source has the potential to affect. Similarly, if there are AQRVs in nearby Federal Class I areas, but the pollutants associated with these AQRVS either will not be emitted by your facility or will not increase by a significant amount as a result of the PCP, then your demonstration should simply indicate the lack of any association between your PCP project and the known AQRVs.

On the other hand, you should be prepared to conduct modeling with respect to any regulated NSR pollutant that your PCP will cause to increase by a significant amount when that pollutant is associated with a known AQRV in a nearby Federal Class I area. Oftentimes, a screening model may be used to estimate the ambient impacts of the increase from your facility. Special concern should be given in cases where an FLM has already identified adverse impacts for such AQRV. In such cases, you are expected to record and consider any information that the FLM has made available concerning the adverse effects, to help determine whether the pollutant impacts from your facility have the potential to cause further adverse impacts.

If a reviewing authority, upon receiving your notification of using the PCP Exclusion, believes that an air quality impacts analysis is reasonably necessary, it is entitled to request more information from you, including additional local or regional modeling.

c. How does the PCP Exclusion Apply to Projects With Collateral Pollutant Increases of Nonattainment Pollutants?

The PCP Exclusion is available, regardless of an area ’ s attainment status or its severity of nonattainment.
Nonetheless, because increases in a nonattainment pollutant contribute to the existing nonattainment problem, you or the reviewing authority must offset with acceptable emissions reductions any significant emissions increase in a nonattainment pollutant resulting from a PCP. We are promulgating the PCP Exclusion consistent with our proposal ’ s approach of requiring mitigation of any significant

emissions increase of a nonattainment pollutant resulting from a PCP. Since less than significant collateral emissions increases (for example, less than 40 tpy of VOC in a moderate ozone nonattainment area) do not trigger major NSR, such mitigation requirements are not necessary for the PCP Exclusion

when the increase of the nonattainment pollutant will be below the applicable significant level. Be aware, however, that a less than significant emissions increase may be subject to a State ’ s minor NSR requirements.

4. Miscellaneous

a. Can you Generate ERCs From Your PCP-Excluded Project?

The proposal would have allowed certain projects approved for the PCP Exclusion to use their primary pollutant(s) emissions reductions as NSR offsets or netting credits. We included in the proposed rule a specialized ‘‘ environmentally

beneficial ’’ test that would apply to PCPs that generate ERCs. Some commenters support allowing ERCs and creating more flexibility to use them.
However, other commenters recommend that EPA avoid complicating the PCP Exclusion by factoring emissions trading

credits with the exclusion. These commenters claim that the parceling out of the appropriate reductions for emissions credits and for the newly

installed PCP would take an enormous amount of time, and cause problems with tracking emissions reductions and using the credits.

We no longer believe it would be prudent to allow PCPs to generate netting credits or offsets for the emissions reductions used to initially qualify the project for the PCP Exclusion, in light of the issues of increased complexity that the commenters raise. But perhaps more importantly, we feel that the emissions reductions initially achieved by the PCP are integral to the ‘‘ environmentally

beneficial ’’ demonstration required in order for the PCP to qualify for the

exclusion. The emissions reductions are traded, in effect, for the significant

emissions increase of the collateral pollutants and for the benefits of being excluded from the major NSR permitting requirements. To then re-use

the reductions would weaken the PCP

Exclusion and would not ensure appropriate environmental protection. Consequently, you cannot use emissions reductions that initially qualified a project for the PCP Exclusion as netting

credits or offsets.

However, you are allowed to continue to use these reductions to generate allowances for purposes of complying with the title IV Acid Rain program. In


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1992, the PCP Exclusion was originally designed for use by EUSGUs because we did not envision that Congress intended for the NSR program to apply to projects undertaken to comply with title IV. Nothing in today ’ s proposal is intended to change that design.

Moreover, once you qualify for the PCP Exclusion, you can apply for ERCs if you change your process conditions in such a way that further reduces emissions. For example, consider that you have an add-on control technology which receives a PCP Exclusion that, at full operation, allows the source to increase its emissions of a specific collateral pollutant and emit 100 tpy of a pollutant (either a targeted pollutant or a collateral pollutant). If you later decide to take an hours-of-operation limit for your process line and/or control technology that reduces your emissions of that pollutant to 75 tpy, then this 25 tpy reduction in emissions

can be used as ERCs if deemed acceptable in all other respects by your reviewing authority.

b. Why Are We Deleting the ‘‘ Primary Purpose ’’ test?

The ‘‘ primary purpose ’’ test was proposed as an initial screening mechanism for reviewing authorities to screen out inappropriate projects and to streamline the approval process. This was designed to help reviewing authorities avoid dedicating unnecessary resources to non-qualifying projects. Furthermore, we recognized

that all of the listed PCPs have a primary purpose of reducing air pollution, so it followed logically that any other PCP should have the same primary purpose.

However, we received comments from both industry and a State trade association stating that many activities and projects have multiple purposes in addition to reducing emissions, and they encourage EPA not to focus on the primary purpose of a project, but rather on the project ’ s net environmental benefit, in considering it for a PCP

Exclusion. A ‘‘ primary purpose ’’ requirement would disqualify projects that may be environmentally beneficial but happen to not have pollution control as their primary purpose. Further, one commenter stated that by focusing on the intent of the project
rather than its end result, administrative agencies will unnecessarily be forced to devote scarce resources to making these

determinations.

We concur with these comments and

have determined that this test is potentially unnecessarily restrictive. Our primary objective in allowing for a

PCP Exclusion is to offer NSR relief for those projects that create a net environmental benefit, and thus we

should not concern ourselves with a

source ’ s motivation for undertaking its project. Therefore, by today ’ s rule revisions, even if a project ’ s primary purpose is not to reduce emissions, it can still qualify for the PCP Exclusion

if it meets the ‘‘ environmentally

beneficial ’’ and air quality tests set forth in today ’ s regulations.

c. How Do the Listed PCP Technologies Compare to BACT or LAER

Determinations?

The list of presumed environmentally beneficial technologies contains several control strategies that do not qualify as BACT or LAER. For example, installing

low-NO X burners on large-sized turbines would rarely constitute an acceptable BACT level. However, these projects are presumed environmentally beneficial and are eligible for the PCP Exclusion from major NSR because these controls are cleaner than the existing equipment
is without the controls. In addition, the PCP Exclusion only applies to sources that are installing PCPs, and not to the

installation of new emissions units or changes that increase the capacity of the unit, both of which would be potentially subject to BACT or LAER. We reiterate, however, that merely because a control technology is listed as environmentally beneficial does not also imply that the technology is equivalent to BACT or LAER, and you should not rely on any such implication as a presumptive

BACT or LAER determination.

d. Is the Intent of the PCP Exclusion to

Allow Collateral Pollutant Emissions to go Uncontrolled?

To qualify for the PCP Exclusion, you

must minimize emissions of collateral pollutants within the physical configuration and operational standards usually associated with the emissions control device or strategy. This typically occurs by inherent design of the control
device that causes them. In most cases, no additional control requirements will be necessary.

e. What Does ‘‘ Demonstrated in

Practice ’’ Mean?

Representatives from industry

comment that we should ease restrictions that require new add-on technologies to be demonstrated in practice. We are continuing to require that new technologies be demonstrated in practice before being added to the list, in part because this is an important element in a showing that the candidate technology is environmentally sound. However, we have expanded the meaning of ‘‘ demonstrated in practice ’’ to include technologies demonstrated

outside of the United States.

f. How Can the Public Participate in the PCP Exclusion Decision for Your Project?

By these rule revisions, we are not requiring any review of your PCP by the public or your reviewing authority prior to enabling the use of the exclusion. Nonetheless, existing State regulations for minor NSR will continue to apply to projects that qualify for the PCP

Exclusion and are not otherwise excluded under the State program. Minor NSR programs are designed to consider the impact these increases could have on air quality, including whether local conditions justify rebutting the presumption that a listed project is environmentally beneficial. Nothing in this rule voids or otherwise creates an exclusion from any otherwise applicable minor NSR preconstruction review requirement in any SIP that has been approved pursuant to section 110(a)(2)(C) of the Act and 40 CFR 51.160 through 51.164. The minor NSR permits may afford the public an opportunity to review and comment on

the use of the PCP Exclusion for a specific project. See §§ 51.160 and
51.161. Furthermore, to undertake a PCP Exclusion, you could use the title V permit revision process to officially

effect the PCP Exclusion. This would enable the public to review the PCP

determination at that time.

Thus, the process for implementing a

PCP Exclusion would be similar to the other exemptions within NSR (routine maintenance, change in ownership, etc.) whereby you are empowered to make the proper decision based on the facts of the case and the rule requirements.

C. Legal Basis for PCP

In 1992, we revised the NSR regulations to exclude PCPs at existing

EUSGUs. See 57 FR 32314 (July 21, 1992), amending
§§ 51.165(a)(1)(v)(C)(8), 51.166(b)(2)(iii)(h), and 52.21(b)(2)(iii)(h). There, we stated that

we believed ‘‘ that Congress did not intend that PCPs be considered the type of activity that should trigger NSR. ’’ 57 FR 32319. Although the 1992 rulemaking applied only to EUSGUs, we believe that Congress ’ s intention holds true for other industry sectors as well. Congress could not have intended to require that, and the Act should not be construed such that, physical or operational changes undertaken to reduce emissions undergo NSR. Therefore, in today ’ s action, we are revising the PCP Exclusion and


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removing the conditions limiting it to

EUSGUs.

In the event that a PCP results in a significant emissions increase of a different pollutant, the reviewing authority may require an analysis of air quality impacts which would serve the same function as an air quality impacts analysis conducted as part of NSR permitting. Providing an exclusion for

PCPs enables facilities to reduce emissions without having to wait for a major NSR permit to be issued. We

believe that this result is consistent with the objectives of the NSR provisions in the CAA. Thus, we are revising our

rules to remove disincentives to pollution control and pollution prevention projects to the extent

allowed under the CAA.

D. Implementation

1. How Do You Apply For and Receive

a PCP Exclusion?

The process for obtaining a PCP Exclusion basically breaks down into two separate scenarios, depending on whether your proposed project is

‘‘ listed ’’ or ‘‘ non-listed ’’ as environmentally beneficial. Both processes are presented below.

a. What Is the Process You Must Follow for Projects Involving Listed PCPs?

Before you begin actual construction on your PCP, you must submit a notice to your reviewing authority that includes the following information (and depending on your reviewing authority ’ s requirements, this information may be submitted with a part 70, part 71 or other SIP-approved permit application such as a minor NSR permit application): (1) A description of project; (2) an analysis of the environmentally beneficial nature of the PCP, including a projection of emissions increases and decreases (speciated, using an appropriate emissions test for the emissions unit); and (3) a demonstration that the project will not have an adverse air quality impact.

You may begin construction on the PCP immediately upon submitting your notice to the reviewing authority. However, if your reviewing authority

determines that the source does not qualify for a PCP Exclusion, you may be subject to a delay in the project or an order to not undertake the project.

b. What Is the Process You Must Follow for Projects Involving Non-Listed PCPs?

For projects not listed in Table 2, on a case-by-case basis your reviewing authority must consider the net

environmental benefit of a non-listed project and, within a reasonable amount of time, act upon your request for the exclusion for a specific application. You must receive this approval from your reviewing authority before beginning

actual construction of the PCP. Your reviewing authority will provide an opportunity for public review and comment prior to granting its approval

for the PCP.

Your application for case-specific approval of a PCP Exclusion should have the same information as required

above for a notice to use a listed technology. The only difference between the two processes is that the use of a listed technology allows you to commence construction on your PCP immediately after submitting your notice to the reviewing authority,

whereas the use of a non-listed technology requires you to first submit an application to your reviewing authority and obtain its approval prior to construction of your PCP.

2. What Process Will We Follow To Add New Projects to the List of Environmentally Beneficial PCPs?

We will use notice and comment rulemaking procedures to add new projects to the list of PCPs that are presumed to be environmentally beneficial. We may take this action on our own initiative or you may petition us, if you believe there is a project that

should be added to the list.

If you submit a petition to us requesting that a non-listed air pollution control technology (which includes pollution prevention or work practices) be determined environmentally beneficial and presumptively qualified for the PCP Exclusion, you should describe the anticipated emissions consequence of installing the PCP, both for primary and collateral pollutants. We will review your submittal within a

reasonable amount of time. If we believe that the project should be added to the list, we will amend the list of approved PCPs through rulemaking. Once the rule has been amended, you may use a newly listed PCP if you proceed in accordance with the process for implementing the PCP Exclusion for listed PCPs. ( See section VI.D.1.a.)

3. What Are Our Operational Expectations for an Excluded PCP?

By this rule, we are creating a general duty for all sources approved to use a PCP Exclusion. This general duty clause requires you to operate the PCP in a

manner consistent with reasonable engineering practices and with the basic applicability requirements for the exclusion ( i.e. , being environmentally beneficial and having no adverse air quality impacts). This means that you have a legal responsibility to operate in a manner that is consistent with your analysis of the environmental benefits and air quality impacts analysis, and that you will minimize collateral pollutant increases within the physical configuration and operational standards usually associated with the emissions control device or strategy.

4. What Are the Implications of Not Complying With the PCP Exclusion

Process?

The PCP Exclusion is a mechanism for bypassing the major NSR permitting requirements. If you do not comply with the steps necessary to qualify for the

PCP Exclusion under the terms of the PCP provisions, you can become subject to major NSR.

VII. Listed Hazardous Air Pollutants

The 1990 Amendments to the CAA at section 112(b)(6) exempted HAP listed under section 112(b)(1) from the PSD requirements in part C. In our 1996 Federal Register Notice, we proposed changes to the regulations at §§ 51.166 and 52.21 to implement this exemption. Specifically, we proposed the following.

• The HAP listed in section 112(b)(1), as well as any pollutant that may be
added to the list, are excluded from the PSD provisions of part C. These HAP
include arsenic, asbestos, benzene, beryllium, mercury, radionuclides, and vinyl chloride, all of which were previously regulated under the PSD rules. This exemption applies to the provisions for major stationary sources

in §§ 51.166(b)(2) and 52.21(b)(2), the significant levels in §§ 51.166(b)(23)(i) and 52.21(b)(23)(i), and the significant monitoring concentrations in
§§ 51.166(i)(8) and 52.21(i)(8).

• Pollutants listed in regulations pursuant to section 112(r)(1), Accidental
Release, are not excluded from the PSD provisions of part C.

• Any HAP listed in section 112(b)(1) that are regulated as constituents or precursors of a more general pollutant listed under section 108 are still subject to PSD, despite the exemption in section 112(b)(6).

• If a pollutant is removed from the list under the provisions of section 112(b)(3) of the Act, that pollutant would be subject to the applicable PSD requirements of part C if it is otherwise regulated under the Act.

• Pollutants regulated under the Act
and not on the list of HAP, such as fluorides, TRS compounds, and sulfuric acid mist, continue to be regulated

under PSD.

Public commenters generally agree that our proposal reflects the statutory requirements. Therefore, today we are


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taking final action to promulgate these proposed provisions at
§§ 51.166(b)(23)(i), 51.166(i)(8), 52.21(b)(23)(i), and 52.21(i)(8).

As today ’ s regulations provide, the following pollutants currently regulated under the Act are subject to Federal PSD review and permitting requirements.

• CO

• NO X

• SO 2

• PM and particulate matter less than

10 microns in diameter (PM

– 10)

• Ozone (VOC)

• Lead (Pb) (elemental)

• Fluorides (excluding hydrogen

fluoride)

• Sulfuric acid mist

• H 2 S

• TRS compounds (including H 2 S)

• CFCs 11, 12, 112, 114, 115

• Halons 1211, 1301, 2402

• Municipal Waste Combustor (MWC)

acid gases, MWC metals, and MWC organics

• ODS regulated under title VI

The PSD program applies automatically to newly regulated NSR pollutants, which would include final promulgation of an NSPS applicable to a previously unregulated pollutant.

As we indicated in our proposal package, CAA section 112(b)(7) states that elemental Pb (the named chemical) may not be listed by the Administrator as a HAP under section 112(b)(1). Therefore, because section 112(b)(6) exempts only the pollutants listed in
section 112, elemental Pb emissions are not exempt from the Federal PSD requirements. Elemental Pb continues to be a criteria pollutant subject to the Pb NAAQS and other requirements of the Act. As proposed, we are also continuing to maintain that the reference to Pb in the regulations regarding the significant levels and significant monitoring concentrations covers the Pb portion of Pb compounds.

See §§ 51.166(b)(23), 51.166(i)(8), 52.21(b)(23), and 52.21(i)(8). Otherwise, the word elemental might imply that only Pb that is not part of a Pb compound is covered.

One commenter requests that we amend the regulations to include a definition of pollutants regulated under the Act. We agree with the commenter that such a provision would clarify which pollutants are covered under the PSD program. Moreover, the

nonattainment NSR rules at § 51.165 would also benefit from this clarity. Therefore, today ’ s final regulations include a definition for regulated NSR pollutant. This new definition replaces the terminology ‘‘ pollutants regulated

under the Act. ’’ The term ‘‘ Regulated NSR pollutant ’’ includes the following pollutants.

• NO X or any VOC

• Any pollutant for which a NAAQS

has been promulgated

• Any pollutant that is subject to any

standard promulgated under section

111 of the Act

• Any Class I or II substance subject to

a standard promulgated under or established by title VI of the Act.

The new definition excludes HAPs

listed in section 112 of the Act (including any pollutants that may be added to the list pursuant to section 112(b)(2) of the Act). However, when any pollutant listed under section 112 of the Act is also a constituent or precursor of a more general pollutant that is regulated under section 108 of the Act, that listed pollutant may be regulated under NSR but only as part of regulation of the general pollutant.

As we indicated in our proposal, State and local agencies with an approved PSD program may continue to regulate the HAP now exempted from Federal PSD by section 112(b)(6) if their PSD regulations provide an independent

basis to do so. These State and local rules remain in effect unless they are revised to provide similar exemptions. Such provisions that are part of the SIP are federally enforceable.

Section 112(q) retains existing NESHAP regulations by specifying that any standard under section 112 in effect

before the enactment of the 1990

Amendments remains in force. Therefore, the requirements of §§ 61.05 to 61.08, including preconstruction permitting requirements for new and modified sources subject to existing NESHAP regulations, are still applicable.

Pollutants listed under section 112(r)

are not included in the definition of regulated NSR pollutant. As we proposed, substances regulated under section 112(r) may still be subject to PSD if they are regulated under other provisions of the Act. For example, even though H 2 S is listed under section 112(r), it is still regulated under the Federal PSD provisions because it is regulated under the NSPS program in section 111. This means that the listing of a substance under section 112(r) does

not exclude the substance from the Federal PSD provisions; the PSD provisions apply if the substance is otherwise regulated under the Act.

We are not taking final action on ambient impact concentrations or

maximum allowable increases in pollutant concentrations as proposed in
§ 51.166(b)(23)(iv) and (v) and
§ 52.21(b)(23)(iv) and (v). Although these provisions are included in the definition of significant, they do not relate to the new provisions for HAP. Instead, they concern Class I issues,

which we have not taken final action

on.

VIII. Effective Date for Today ’ s Requirements

As discussed above, today we are changing the existing NSR requirements in five ways.

• Providing a new method for

determining baseline actual emissions

• Adopting the actual-to-projectedactual methodology for determining whether a major modification has

occurred

• Allowing major stationary sources to

comply with PALs to avoid having a significant emissions increase that triggers the requirements of the major NSR program

• Providing new applicability

provisions for emissions units that are designated Clean Units

• Excluding PCPs from the definition of

‘‘ physical change or change in the method of operation ’’
Today ’ s rules codify our longstanding policy for calculating the baseline actual emissions for EUSGUs, which is any consecutive 2 years in the past 5 years, or another more representative period. In today ’ s final rules we are also including a new section that outlines how a major modification is determined under the various major NSR applicability options and clarifies where you will find the provisions in our

revised rules.

All of these changes will take effect in the Federal PSD program (codified at
§ 52.21) on March 3, 2003. This means that these rules will apply on March 3, 2003, in any area without an approved PSD program, for which we are the reviewing authority, or for which we have delegated our authority to issue permits to a State or local reviewing authority.

To be approvable under the SIP, State and local agency programs implementing part C (PSD permit program in § 51.166) or part D (nonattainment NSR permit program in
§ 51.165) must include today ’ s changes as minimum program elements. State and local agencies should assure that any program changes under §§ 51.165 and 51.166 are consistently accounted for in other SIP planning measures. State and local agencies must adopt and submit revisions to their part 51 permitting programs implementing these minimum program elements no later than January 2, 2006. That is, for

both nonattainment and attainment


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areas, the SIP revisions must be adopted and submitted within 3 years from today. The Act does not specify a date

for submission of SIPs when we revise

the PSD and NSR rules. We believe it is appropriate to establish a date analogous to the date for submission of new SIPs when a NAAQS is promulgated or revised. Under section 110(a)(1) of the Act, as amended in 1990, that date is 3 years from promulgation or revision of the NAAQS. Accordingly, we have established 3 years from today ’ s revisions as the required date for submission of conforming SIP revisions. We have made conforming changes to the PSD regulations at § 51.166(a)(6)(i) to indicate that State and local agencies must adopt and submit plan revisions within 3 years after new amendments are published in the Federal Register

.

In our 1996 proposed rule, we solicited comment on a new approachfor implementing the applicabilityrelated NSR improvements ( i.e. , PALs, the Clean Unit provision, the PCP Exclusion, and provisions related to measuring emissions increases). We noted that the Agency in the past ‘‘ has essentially required States to follow a single applicability methodology, ’’ but

that ‘‘ States could, of course, have a more stringent approach. ’’ 61 FR 38253. Instead of following this normal course, we proposed to establish the new applicability provisions as a ‘‘ menu ’’ of options. Under this approach, we would have allowed States to adopt into their NSR programs all, some, or none of the new provisions.

In today ’ s final rule, we have decided not to implement the menu approach. We have opted instead to retain our longstanding approach of incorporating all of the new provisions into our

‘‘ base ’’ NSR program requirements,

which are set forth in §§ 51.165, 51.166, and 52.24. The same provisions will be

included in § 52.21, our own PSD permitting program. Our decision is based primarily on our belief that the NSR program will work better as a practical matter and will produce better

environmental results if all five of the new applicability provisions are adopted and implemented. We and our stakeholders invested unprecedented amounts of time, energy, and resources in deciding how best to improve the NSR program. After well over a decade of sustained effort, we believe that we have found effective solutions to many of the program ’ s most intractable problems. We hope that making the new provisions part of our base programs will provide incentive for these provisions to be adopted on a widespread basis. Notably, even without the menu approach, State and local jurisdictions have significant freedom to customize their NSR programs. Ever since our current NSR regulations were adopted in 1980, we have taken the position that States may meet the requirements of

part 51 ‘‘ with different but equivalent regulations. ’’ 45 FR 52676. Several States have, indeed, implemented programs that work every bit as well as our own base programs, yet depart substantially from the basic framework established in our rules. A goodexample is Oregon, where the SIPapproved program requires all major sources to obtain plantwide permits not unlike the PALs that we are finalizing today. Oregon ’ s program plainly

illustrates that we have not implemented our base programs with a one-size-fits-all mentality and certainly do not have the goal of ‘‘ preempting ’’ State creativity or innovation.

Perhaps the biggest potential disadvantages to implementing the new applicability provisions as part of our base programs are the time and effort required to revise existing State programs and to have the revised programs approved as part of the SIP. For States that choose to adopt all of the new applicability provisions, we expect that the SIP approval process will be expeditious. Of course, the review and approval process will be more complicated for States that choose to adopt a program that differs from our base programs. For example, if a State decides it does not want to implement any of the new applicability provisions,

that State will need to show that its existing program is at least as stringent as our revised base program. It would be impossible for us to plan ahead for all of the possible variations that States might ultimately elect to pursue. We
will, however, reach out to relevant stakeholders immediately after publication of these rules and try to develop streamlined methods for addressing common questions that may arise during the SIP approval process.

IX. Administrative Requirements

A. Executive Order 12866

— Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether the regulatory

action is ‘‘ significant ’’ and therefore subject to OMB review and the requirements of the Executive Order.

The Order defines ‘‘ significant regulatory action ’’ as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the

President ’ s priorities, or the principles

set forth in the Executive Order.

Pursuant to the terms of Executive
Order 12866, OMB has notified us that

it considers this rule a ‘‘ significant regulatory action. ’’ As such, this action

was submitted to OMB for review.

B. Executive Order 13132

— Federalism

Executive Order 13132, entitled

‘‘ Federalism ’’ (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure

‘‘ meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. ’’ ‘‘ Policies that have federalism implications ’’ is defined in

the Executive Order to include regulations that have ‘‘ substantial direct effects on the States, on the relationship between the national government and
the States, or on the distribution of power and responsibilities among the various levels of government. ’’

This final rule does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in

Executive Order 13132. While this final rule will result in some expenditures by the States, we expect those expenditures to be limited to $331,250 per year. This figure includes the small increase in the burden imposed upon reviewing

authorities in order for them to revise

the State ’ s SIP. However, these revisions provide greater operational flexibility to sources permitted by the States, which

will in turn reduce the overall burden of the program on State and local authorities by reducing the number of required permit modifications. Thus, Executive Order 13132 does not apply to this rule. Nevertheless, in the spirit
of Executive Order 13132, and consistent with EPA policy to promote

communications between EPA and State and local governments, we specifically


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solicited comment on the proposed rule

from State and local officials.

C. Executive Order 13175

— Consultation

and Coordination With Indian Tribal

Governments

Executive Order 13175, entitled

‘‘ Consultation and Coordination with

Indian Tribal Governments ’’ (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to

ensure ‘‘ meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications. ’’ We believe that this final rule does not have tribal implications as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

EPA began considering potential revisions to the NSR rules in the early

1990 ’ s and proposed changes in 1996. The purpose of today ’ s final rule is to add greater flexibility to the existing major NSR regulations. These changes will benefit both reviewing authorities and the regulated community by providing increased certainty as to when the requirements apply, and by providing alternative ways to comply with the requirements. Taken as a whole, today ’ s final rule should result in no added burden or compliance costs and should not substantially change the level of environmental performance achieved under the previous rules.

We anticipate that initially these changes will result in a small increase in the burden imposed upon reviewing

authorities in order for them to be

included in the State ’ s SIP, as well as

other small increases in burden

discussed under ‘‘ Paperwork Reduction

Act. ’’ Nevertheless, these revisions will ultimately provide greater operational flexibility to sources permitted by the States, which will in turn reduce the overall burden of the program on State and local authorities by reducing the number of required permit modifications. In comparison, no tribal government currently has an approved tribal implementation plan (TIP) under the CAA to implement the NSR program. The Federal government is currently the NSR reviewing authority in Indian country, thus tribal governments should not experience
added burden, nor should their laws be affected with respect to implementation of this rule. Additionally, although major stationary sources affected by today ’ s final rule could be located in or near Indian country and/or be owned or operated by tribal governments, such

sources would not incur additional costs or compliance burdens as a result of this rule. Instead, the only effect on

such sources should be the benefit of the added certainty and flexibility provided by the rule.

We recognize the importance of including tribal consultation as part of the rulemaking process. Although we did not include specific consultation with tribal officials as part of our outreach process on this final rule, which was developed largely prior to

issuance of Executive Order 13175 and which does not have tribal implications under Executive Order 13175, we will

continue to consult with tribes on future rulemakings to assess and address tribal implications, and will work with tribes interested in seeking TIP approval to implement the NSR program to ensure consistency of tribal plans with this

rule.

D. Executive Order 13045

— Protection of

Children From Environmental Health Risks and Safety Risks

Executive Order 13045, entitled

‘‘ Protection of Children from Environmental Health Risks and Safety

Risks ’’ (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is

determined to be ‘‘ economically significant ’’ as defined under Executive Order 12866; and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This final rule is not subject to the

Executive Order because it is not economically significant as defined in
Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children because we believe that this package as a whole will result in equal or better environmental protection than currently provided by the existing regulations,

and do so in a more streamlined and

effective manner.

E. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L.

104

–4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private
sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules

with ‘‘ Federal mandates ’’ that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost

effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost effective

or least burdensome alternative if the Administrator publishes with the final rule an explanation as to why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed

under section 203 of the UMRA a small government agency plan.

The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

We have determined that this rule

does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. Although initially these changes are expected to result in a small increase in the burden imposed upon reviewing

authorities in order for them to be

included in the State ’ s SIP, as well as

other small increases in burden

discussed under ‘‘ Paperwork Reduction

Act, ’’ these revisions will ultimately provide greater operational flexibility to sources permitted by the States, which

will in turn reduce the overall burden of the program on State and local authorities by reducing the number of required permit modifications. In addition, we believe the rule changes will actually reduce the regulatory burden associated with the major NSR program by improving the operational flexibility of owners and operators, improving the clarity of requirements, and providing alternatives that sources may take advantage of to further improve their operational flexibility. Thus, today ’ s rule is not subject to the requirements of sections 202 and 205 of

the UMRA.


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For the same reasons stated above, we

have determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Thus, today ’ s rule is not subject to the requirements of section

203 of the UMRA.

F. Regulatory Flexibility Analysis

EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with

this final rule. EPA has also determined that this rule will not have a significant economic impact on a substantial number of small entities. For purposes of assessing the impacts of today ’ s rule on small entities, small entity is defined as: (1) Any small business employing fewer than 500 employees; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; or (3) asmall organization that is any not-forprofit enterprise that is independently owned and operated and is not

dominant in its field.

After considering the economic impacts of today ’ s final rule on small entities, we have concluded that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory

alternatives ‘‘ which minimize any significant economic impact of the proposed rule on small entities. ’’ 5 U.S.C. 603 and 604. Thus, an agency may conclude that a rule will not have a significant economic impact on a

substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect, on all of the small entities subject

to the rule.

A Regulatory Flexibility Act Screening Analysis (RFASA), developed as part of a 1994 draft Regulatory Impact Analysis (RIA) and incorporated into the September 1995 ICR renewal analysis, showed that the changes to the NSR program due to the 1990 CAA

Amendments would not have an adverse impact on small entities. This analysis encompassed the entire universe of applicable major sources that were likely to also be small businesses (approximately 50 ‘‘ small

business ’’ major sources). Because the

administrative burden of the NSR program is the primary source of the NSR program ’ s regulatory costs, the analysis estimated a negligible ‘‘ cost to
sales ’’ (regulatory cost divided by the business category mean revenue) ratio for this source group. Currently, and as reported in the current ICR, there is no

economic basis for a different

conclusion.

We believe these rule changes will reduce the regulatory burden associated with the major NSR program for all sources, including all small businesses, by improving the operational flexibility of owners and operators, improving the clarity of requirements, and providing alternatives that sources may take advantage of to further improve their operational flexibility. As a result, the program changes provided in the final rule are not expected to result in any increases in expenditure by any small entity.

We have therefore concluded that today ’ s final rule will relieve regulatory

burden for all small entities.

G. Paperwork Reduction Act

The information collection requirements in this rule will be

contained in two different Information Collection Requests (ICRs).

The Office of Management and Budget (OMB) has approved the information collection requirements contained under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number

2060

–0003 (ICR 1230.10). The EPA prepared an ICR document (ICR No. 1230.10) extending the approval of the ICR for the promulgated NSR regulations on March 30, 2001. On October 29, 2001, OMB approved EPA ’ s request for extension for 3 years until
October 31, 2004. The OMB number for this approval is 2060

–0003.

In addition to the existing ICR, the information collection requirements in

this final rule have been submitted for approval to OMB under the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An ICR document has been prepared by EPA (ICR No. 2074.01), and a copy may be obtained from Susan Auby, U.S. Environmental Protection Agency,
Office of Environmental Information, Collection Strategies Division (2822T), 1200 Pennsylvania Avenue, NW., Washington, DC 20460

–0001, by e-mail

at auby.susan@epa.gov, or by calling (202) 566

– 1672. A copy may also be

downloaded off the Internet at http:// www.epa.gov/icr. The information requirements included in ICR No.

2074.01 are not effective until OMB approves them.

The information that ICR No. 2074.01 covers is required for the submittal of a complete permit application for the construction or modification of all major new stationary sources of pollutants in attainment and nonattainment areas, as well as for applicable minor stationary sources of pollutants. This information collection is necessary for the proper performance of EPA ’ s functions, has practical utility, and is not unnecessarily duplicative of

information we otherwise can reasonably access. We have reduced, to the extent practicable and appropriate, the burden on persons providing the

information to or for EPA.

According to ICR No. 2074.01, as a result of the rule changes, the total 3- year burden change of the revised collection is estimated at about 219,741
hours at a total cost of $7.7 million. The annual burden change to industry is about 64,287 hours at a cost of $2.2 million. The annual burden change to reviewing agencies is about 8,960 hours at a cost of $331,520. The total annual respondent change is 73,247 hours for a total respondent change in cost of $2.6 million. These costs changes are based upon 62 PSD and 123 NSR non-utility sources (185 total); and 85 PSD and 169 NSR (254 total) sources, including utilities. For the number of respondent reviewing authorities, the analysis uses the 112 reviewing authorities count used by other permitting ICRs for the one-time tasks (for example, SIP revisions) and the appropriate source count for individual permit-relateditems (for example, attending preapplication meetings with the source). There is only one Federal source listed

in the ICR.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purpose of responding to the information collection; adjust existing ways to comply with any previously applicable instructions and requirements; train personnel to respond to a collection of information; search existing data sources; complete and review the collection of information; and transmit

or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB

control number. The OMB control

numbers for EPA ’ s regulations are listed in 40 CFR part 9 and 48 CFR chapter 15. We will continue to present OMB

control numbers in a consolidated table format to be codified in 40 CFR part 9


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of the Agency ’ s regulations, and in each CFR volume containing EPA regulations. The table lists the section numbers with reporting and recordkeeping requirements, and the

current OMB control numbers. This listing of the OMB control numbers and their subsequent codification in the CFR satisfy the requirements of the Paperwork Reduction Act (44 U.S.C.

3501 et seq. ) and OMB ’ s implementing regulations at 5 CFR part 1320.

H. National Technology Transfer and

Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Pub. L. 104

– 113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical.

Voluntary consensus standards are technical standards (for example, materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards

bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This action does not involve technical

standards. This final rule does not create new requirements but, rather, revises an existing permitting program by providing a series of program options that affected facilities may choose to adopt. These options will reduce the regulatory burden associated with the major NSR program by improving the operational flexibility of owners and operators, improving the clarity of requirements, and providing alternatives that sources may take advantage of to further improve their operational flexibility. Therefore, EPA did not consider the use of any voluntary consensus standards.

I. Congressional Review Act

The Congressional Review Act, 5

U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General

of the United States. EPA submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in

the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register

. This action is not a ‘‘ major rule ’’ as defined by 5 U.S.C. 804(2). Nonetheless, the Agency has decided to provide an effective date that is 60 days after publication in the Federal Register

. This rule will be effective March 3,

2003.

J. Executive Order 13211

— Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

This rule is not a ‘‘ significant energy

action ’’ as defined in Executive Order

13211, ‘‘ Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use ’’ (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Today ’ s rule improves the ability of sources to undertake pollution prevention or energy efficiency projects, switch to less polluting fuels or raw materials, maintain the reliability of production facilities, and effectively utilize and improve existing capacity.

The rule also includes a number of provisions to streamline administrative and permitting processes so that facilities can quickly accommodate changes in supply and demand. The regulations provide several alternatives that are specifically designed to reduce

administrative burden for sources that use pollution prevention or energy efficient projects.

X. Statutory Authority

The statutory authority for this action is provided by sections 101, 112, 114, 116, and 301 of the Act as amended (42 U.S.C. 7401, 7412, 7414, 7416, and 7601). This rulemaking is also subject to section 307(d) of the Act (42 U.S.C. 7407(d)).

XI. Judicial Review

Under section 307(b)(1) of the Act, judicial review of this final rule is available only by the filing of a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by March 3, 2003. Any such judicial review is limited to only those objections that are raised with reasonable specificity in timely comments. Under section 307(b)(2) of the Act, the requirements that are the subject of this final rule may not be challenged later in civil or criminal proceedings brought by us to enforce these requirements.

List of Subjects

40 CFR Part 51

Environmental protection, Administrative practices and procedures, Air pollution control,
BACT, Baseline emissions, Carbon monoxide, Clean Units, Hydrocarbons, Intergovernmental relations, LAER, Lead, Major modifications, Nitrogen
oxides, Ozone, Particular matter, Plantwide applicability limitations, Pollution control projects, Sulfur

oxides.

40 CFR Part 52

Environmental protection, Administrative practices and procedures, Air pollution control,
BACT, Baseline emissions, Carbon monoxide, Clean Units, Hydrocarbons, Intergovernmental relations, LAER, Lead, Major modifications, Nitrogen
oxides, Ozone, Particulate matter, Plantwide applicability limitations, Pollution control projects, Sulfur

oxides.

Dated: November 22, 2002.

Christine Todd Whitman,

Administrator.

For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as

follows:

PART 51

— [Amended]

1. The authority citation for part 51

continues to read as follows:

Authority: 23 U.S.C. 101; 42 U.S.C. 7401

— 7671 q.

Subpart I

— [Amended]

2. In 40 CFR 51.165(a)(1)(i), remove

the words ‘‘ any air pollutant subject to regulation under the Act, ’’ and add, in their place, the words ‘‘ a regulated NSR pollutant. ’’

3. In addition to the amendments set
forth above, in 40 CFR 51.165 (a)(1)(iv)(A)( 1 ), remove the words

‘‘ pollutant subject to regulation under

the Act ’’ and add, in their place, the

words ‘‘ regulated NSR pollutant. ’’

4. In addition to the amendments set
forth above, § 51.165 is amended:

a. By revising the introductory text in paragraph (a).

b. By revising paragraphs (a)(1)(v)(A) and (B).

c. By revising paragraph (a)(1)(v)(C)( 8 ).

d. By adding paragraph (a)(1)(v)(D). e. By revising paragraph (a)(1)(vi)(A). f. By revising paragraph (a)(1)(vi)(C). g. By revising paragraph (a)(1)(vi)(E)( 2 ).

h. By revising paragraph (a)(1)(vi)(E)( 4 ).

i. By adding paragraph (a)(1)(vi)(E)( 5). j. By adding paragraph (a)(1)(vi)(G). k. By revising paragraph (a)(1)(vii).


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l. By revising paragraph (a)(1)(xii). m. By revising the introductory text in paragraph (a)(1)(xiii).

n. By revising paragraph (a)(1)(xviii). o. By reserving paragraph (a)(1)(xxi). p. By revising paragraph (a)(1)(xxv). q. By adding paragraphs (a)(1)(xxvi) through (xlii).

r. By revising paragraph (a)(2). s. By adding paragraphs (a)(3)(ii)(H) through (J).

t. By adding paragraphs (a)(6) through (7).

u. By adding paragraphs (c) through (g).

The revisions and additions read as

follows:

§ 51.165 Permit requirements.

(a) State Implementation Plan and Tribal Implementation Plan provisions satisfying sections 172(c)(5) and 173 of the Act shall meet the following

conditions:

(1) * * * (v) * * * (A) Major modification means any physical change in or change in the method of operation of a major stationary source that would result in:

( 1 ) A significant emissions increase of a regulated NSR pollutant (as defined in paragraph (a)(1)(xxxvii) of this section);

and

( 2 ) A significant net emissions increase of that pollutant from the major stationary source.

(B) Any significant emissions increase (as defined in paragraph (a)(1)(xxvii) of this section) from any emissions units or net emissions increase (as defined in paragraph (a)(1)(vi) of this section) at a major stationary source that is significant for volatile organic compounds shall be considered significant for ozone.

(C) * * * ( 8 ) The addition, replacement, or use of a PCP, as defined in paragraph (a)(1)(xxv) of this section, at an existing emissions unit meeting the requirements of paragraph (e) of this section. A replacement control technology must provide more effective

emissions control than that of the replaced control technology to qualify

for this exclusion.

* * * * *

(D) This definition shall not apply with respect to a particular regulated NSR pollutant when the major stationary source is complying with the requirements under paragraph (f) of this section for a PAL for that pollutant. Instead, the definition at paragraph (f)(2)(viii) of this section shall apply.

(vi)(A) Net emissions increase means, with respect to any regulated NSR pollutant emitted by a major stationary source, the amount by which the sum of the following exceeds zero:

( 1 ) The increase in emissions from a particular physical change or change in the method of operation at a stationary source as calculated pursuant to paragraph (a)(2)(ii) of this section; and

( 2 ) Any other increases and decreases in actual emissions at the major stationary source that are contemporaneous with the particular change and are otherwise creditable. Baseline actual emissions for calculating

increases and decreases under this paragraph (a)(1)(vi)(A)( 2 ) shall be determined as provided in paragraph (a)(1)(xxxv) of this section, except that paragraphs (a)(1)(xxxv)(A)( 3 ) and (a)(1)(xxxv)(B)( 4 ) of this section shall not apply.

* * * * *

(C) An increase or decrease in actual emissions is creditable only if:

( 1 ) It occurs within a reasonable period to be specified by the reviewing authority; and

( 2 ) The reviewing authority has not relied on it in issuing a permit for the source under regulations approved pursuant to this section, which permit

is in effect when the increase in actual emissions from the particular change
occurs; and

( 3 ) The increase or decrease in
emissions did not occur at a Clean Unit, except as provided in paragraphs (c)(8) and (d)(10) of this section.

* * * * *

(E) * * * ( 2 ) It is enforceable as a practical

matter at and after the time that actual construction on the particular change begins; and

* * * * *

( 4 ) It has approximately the same qualitative significance for public health

and welfare as that attributed to the increase from the particular change; and

( 5) The decrease in actual emissions

did not result from the installation of add-on control technology or application of pollution prevention practices that were relied on in designating an emissions unit as a Clean Unit under 40 CFR 52.21(y) or under regulations approved pursuant to paragraph (d) of this section or
§ 51.166(u). That is, once an emissions unit has been designated as a Clean Unit, the owner or operator cannot later

use the emissions reduction from the air pollution control measures that the Clean Unit designation is based on in calculating the net emissions increase for another emissions unit ( i.e. , must not
use that reduction in a ‘‘ netting analysis ’’ for another emissions unit). However, any new emissions reductions that were not relied upon in a PCP excluded pursuant to paragraph (e) of

this section or for a Clean Unit designation are creditable to the extent they meet the requirements in paragraphs (e)(6)(iv) of this section for the PCP and paragraphs (c)(8) or (d)(10)

of this section for a Clean Unit.

* * * * *

(G) Paragraph (a)(1)(xii)(B) of this section shall not apply for determining

creditable increases and decreases or after a change.

* * * * *

(vii) Emissions unit means any part of a stationary source that emits or would have the potential to emit any regulated NSR pollutant and includes an electric steam generating unit as defined in paragraph (a)(1)(xx) of this section. For purposes of this section, there are two types of emissions units as described in paragraphs (a)(1)(vii)(A) and (B) of this

section.

(A) A new emissions unit is any emissions unit which is (or will be) newly constructed and which has existed for less than 2 years from the date such emissions unit first operated.

(B) An existing emissions unit is any

emissions unit that does not meet the requirements in paragraph (a)(1)(vii)(A)

of this section.

* * * * *

(xii)(A) Actual emissions means the actual rate of emissions of a regulated NSR pollutant from an emissions unit,

as determined in accordance with paragraphs (a)(1)(xii)(B) through (D) of this section, except that this definition shall not apply for calculating whether a significant emissions increase has occurred, or for establishing a PAL under paragraph (f) of this section. Instead, paragraphs (a)(1)(xxviii) and (xxxv) of this section shall apply for those purposes.

(B) In general, actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a consecutive 24-month period which precedes the particular date and which is representative of normal source operation. The reviewing authority shall allow the use of a different time period upon a determination that it is more representative of normal source operation. Actual emissions shall be calculated using the unit ’ s actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.

(C) The reviewing authority may presume that source-specific allowable


### 80246 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

emissions for the unit are equivalent to

the actual emissions of the unit.

(D) For any emissions unit that has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on

that date.

(xiii) Lowest achievable emission rate (LAER) means, for any source, the more stringent rate of emissions based on the following: * * *

* * * * *

(xviii) Construction means any physical change or change in the method of operation (including
fabrication, erection, installation,
demolition, or modification of an emissions unit) that would result in a change in emissions.

* * * * *

(xxi) [Reserved]

* * * * *

(xxv) Pollution control project (PCP) means any activity, set of work practices or project (including pollution prevention as defined under paragraph (a)(1)(xxvi) of this section) undertaken at an existing emissions unit that reduces emissions of air pollutants from such unit. Such qualifying activities or projects can include the replacement or upgrade of an existing emissions control technology with a more effective unit. Other changes that may occur at the source are not considered part of the PCP if they are not necessary to reduce emissions through the PCP. Projects listed in paragraphs (a)(1)(xxv)(A) through (F) of this section are presumed to be environmentally beneficial pursuant to paragraph (e)(2)(i) of this section. Projects not listed in theseparagraphs may qualify for a casespecific PCP exclusion pursuant to the requirements of paragraphs (e)(2) and (e)(5) of this section.

(A) Conventional or advanced flue gas desulfurization or sorbent injection for

control of SO 2

.

(B) Electrostatic precipitators, baghouses, high efficiency multiclones, or scrubbers for control of particulate matter or other pollutants.

(C) Flue gas recirculation, low-NO Xburners or combustors, selective noncatalytic reduction, selective catalytic reduction, low emission combustion (for IC engines), and oxidation/absorption catalyst for control of NO X

.

(D) Regenerative thermal oxidizers, catalytic oxidizers, condensers, thermal incinerators, hydrocarbon combustion
flares, biofiltration, absorbers and adsorbers, and floating roofs for storage vessels for control of volatile organic compounds or hazardous air pollutants. For the purpose of this section,

‘‘ hydrocarbon combustion flare ’’ means either a flare used to comply with an applicable NSPS or MACT standard (including uses of flares during startup, shutdown, or malfunction permitted under such a standard), or a flare that

serves to control emissions of waste streams comprised predominately of hydrocarbons and containing no more than 230 mg/dscm hydrogen sulfide.

(E) Activities or projects undertaken to accommodate switching (or partially switching) to an inherently less polluting fuel, to be limited to the following fuel switches:

( 1 ) Switching from a heavier grade of fuel oil to a lighter fuel oil, or any grade of oil to 0.05 percent sulfur diesel ( i.e.

, from a higher sulfur content #2 fuel or from #6 fuel, to CA 0.05 percent sulfur #2 diesel);

( 2 ) Switching from coal, oil, or any solid fuel to natural gas, propane, or gasified coal;

( 3 ) Switching from coal to wood, excluding construction or demolition waste, chemical or pesticide treated
wood, and other forms of ‘‘ unclean ’’ wood;

( 4 ) Switching from coal to #2 fuel oil (0.5 percent maximum sulfur content);

and

( 5) Switching from high sulfur coal to low sulfur coal (maximum 1.2 percent sulfur content).

(F) Activities or projects undertaken to accommodate switching from the use of one ozone depleting substance (ODS)

to the use of a substance with a lower or zero ozone depletion potential (ODP), including changes to equipment needed to accommodate the activity or project, that meet the requirements of paragraphs (a)(1)(xxv)(F)( 1 ) and ( 2 ) of

this section.

( 1 ) The productive capacity of the equipment is not increased as a result of the activity or project.

( 2 ) The projected usage of the new substance is lower, on an ODP-weighted basis, than the baseline usage of the replaced ODS. To make this determination, follow the procedure in paragraphs (a)(1)(xxv)(F)( 2 )( i) through ( iv ) of this section. ( i) Determine the ODP of the substances by consulting 40 CFR part 82, subpart A, appendices A and B.

( ii) Calculate the replaced ODPweighted amount by multiplying the baseline actual usage (using the annualized average of any 24 consecutive months of usage within the past 10 years) by the ODP of the replaced ODS.

( iii) Calculate the projected ODPweighted amount by multiplying the projected future annual usage of the new substance by its ODP. ( iv ) If the value calculated in paragraph (a)(1)(xxv)(F)( 2 )( ii) of this

section is more than the value calculated in paragraph (a)(1)(xxv)(F)( 2 )( iii) of this section, then the projected use of the new substance is lower, on an ODP-weighted basis, than the baseline usage of the replaced

ODS.

(xxvi) Pollution prevention means any activity that through process changes, product reformulation or redesign, or substitution of less polluting raw materials, eliminates or reduces the release of air pollutants (including fugitive emissions) and other pollutants to the environment prior to recycling, treatment, or disposal; it does not mean recycling (other than certain ‘‘ in-process recycling ’’ practices), energy recovery, treatment, or disposal.

(xxvii) Significant emissions increase means, for a regulated NSR pollutant, an increase in emissions that is significant (as defined in paragraph (a)(1)(x) of this section) for that pollutant.

(xxviii)(A) Projected actual emissions means, the maximum annual rate, in tons per year, at which an existing emissions unit is projected to emit a regulated NSR pollutant in any one of the 5 years (12-month period) following the date the unit resumes regular operation after the project, or in any one of the 10 years following that date, if the project involves increasing the

emissions unit ’ s design capacity or its potential to emit of that regulated NSR pollutant and full utilization of the unit would result in a significant emissions increase or a significant net emissions increase at the major stationary source.

(B) In determining the projected actual emissions under paragraph (a)(1)(xxviii)(A) of this section before beginning actual construction, the owner or operator of the major stationary source:

( 1 ) Shall consider all relevant information, including but not limited to, historical operational data, the

company ’ s own representations, the

company ’ s expected business activity and the company ’ s highest projections of business activity, the company ’ s filings with the State or Federal regulatory authorities, and compliance plans under the approved plan; and

( 2 ) Shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns,
and malfunctions; and

( 3 ) Shall exclude, in calculating any

increase in emissions that results from the particular project, that portion of the

unit ’ s emissions following the project that an existing unit could have accommodated during the consecutive 24-month period used to establish the


### 80247 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

baseline actual emissions under paragraph (a)(1)(xxxv) of this section

and that are also unrelated to the particular project, including any increased utilization due to product demand growth; or,

( 4 ) In lieu of using the method set out in paragraphs (a)(1)(xxviii)(B)( 1 ) through ( 3 ) of this section, may elect to

use the emissions unit ’ s potential to emit, in tons per year, as defined under paragraph (a)(1)(iii) of this section.

(xxix) Clean Unit means any emissions unit that has been issued a major NSR permit that requires compliance with BACT or LAER, that is complying with such BACT/LAER requirements, and qualifies as a Clean Unit pursuant to regulations approved by the Administrator in accordance with paragraph (c) of this section; or any emissions unit that has been designated by a reviewing authority as a Clean Unit, based on the criteria in paragraphs (d)(3)(i) through (iv) of this section, using a plan-approved permitting process; or any emissions unit that has been designated as a Clean Unit by the

Administrator in accordance with
§ 52.21(y)(3)(i) through (iv) of this chapter.

(xxx) Nonattainment major new source review (NSR) program means a major source preconstruction permit program that has been approved by the Administrator and incorporated into the plan to implement the requirements of this section, or a program that implements part 51, appendix S, Sections I through VI of this chapter. Any permit issued under such a program is a major NSR permit.

(xxxi) Continuous emissions monitoring system (CEMS) means all of the equipment that may be required to meet the data acquisition and availability requirements of this section, to sample, condition (if applicable), analyze, and provide a record of

emissions on a continuous basis.

(xxxii) Predictive emissions monitoring system (PEMS) means all of the equipment necessary to monitor process and control device operational parameters (for example, control device secondary voltages and electric currents) and other information (for example, gas flow rate, O 2 or CO 2 concentrations), and calculate and record the mass emissions rate (for example, lb/hr) on a continuous basis.

(xxxiii) Continuous parameter monitoring system (CPMS) means all of the equipment necessary to meet the data acquisition and availability requirements of this section, to monitor process and control device operational parameters (for example, control device secondary voltages and electric currents) and other information (for example, gas flow rate, O 2 or CO 2 concentrations), and to record average operational parameter value(s) on a

continuous basis.

(xxxiv) Continuous emissions rate monitoring system (CERMS) means the total equipment required for the determination and recording of the pollutant mass emissions rate (in terms of mass per unit of time).

(xxxv) Baseline actual emissions means the rate of emissions, in tons per year, of a regulated NSR pollutant, as

determined in accordance with paragraphs (a)(1)(xxxv)(A) through (D)

of this section.

(A) For any existing electric utility steam generating unit, baseline actual emissions means the average rate, in tons per year, at which the unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the 5- year period immediately preceding when the owner or operator begins actual construction of the project. The reviewing authority shall allow the use of a different time period upon a

determination that it is more representative of normal source operation.

( 1 ) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and

malfunctions.

( 2 ) The average rate shall be adjusteddownward to exclude any noncompliant emissions that occurred while the source was operating above any emission limitation that was legally enforceable during the consecutive 24- month period.

( 3 ) For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-month period must be used to

determine the baseline actual emissions for the emissions units being changed.

A different consecutive 24-month period can be used for each regulated NSR pollutant.

( 4 ) The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by paragraph (a)(1)(xxxv)(A)( 2 ) of this section.

(B) For an existing emissions unit (other than an electric utility steam generating unit), baseline actual emissions means the average rate, in tons per year, at which the emissions unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the 10-year period immediately preceding either the date the owner or operator begins actual construction of the project, or the date a complete permit application is received by the reviewing authority for a permit required either under this section or under a plan approved by the
Administrator, whichever is earlier, except that the 10-year period shall not include any period earlier than
November 15, 1990.

( 1 ) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and

malfunctions.

( 2 ) The average rate shall be adjusteddownward to exclude any noncompliant emissions that occurred while the source was operating above an emission limitation that was legally enforceable during the consecutive 24- month period.

( 3 ) The average rate shall be adjusted downward to exclude any emissions

that would have exceeded an emission limitation with which the major stationary source must currently comply, had such major stationary source been required to comply with such limitations during the consecutive 24-month period. However, if an emission limitation is part of a

maximum achievable control technology standard that the Administrator proposed or promulgated under part 63 of this chapter, the baseline actual emissions need only be adjusted if the State has taken credit for

such emissions reductions in an

attainment demonstration or maintenance plan consistent with the requirements of paragraph (a)(3)(ii)(G) of

this section.

( 4 ) For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-month period must be used to

determine the baseline actual emissions for the emissions units being changed.

A different consecutive 24-month period can be used For each regulated NSR pollutant.

( 5) The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by paragraphs (a)(1)(xxxv)(B)( 2 ) and ( 3 ) of this section.

(C) For a new emissions unit, the baseline actual emissions for purposes of determining the emissions increase

that will result from the initial construction and operation of such unit shall equal zero; and thereafter, for all other purposes, shall equal the unit ’ s potential to emit.


### 80248 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

(D) For a PAL for a major stationary source, the baseline actual emissions shall be calculated for existing electric utility steam generating units in accordance with the procedures contained in paragraph (a)(1)(xxxv)(A) of this section, for other existing

emissions units in accordance with the procedures contained in paragraph (a)(1)(xxxv)(B) of this section, and for a

new emissions unit in accordance with the procedures contained in paragraph (a)(1)(xxxv)(C) of this section.

(xxxvi) [Reserved] (xxxvii) Regulated NSR pollutant, for purposes of this section, means the following:

(A) Nitrogen oxides or any volatile organic compounds;

(B) Any pollutant for which a national ambient air quality standard has been promulgated; or

(C) Any pollutant that is a constituent or precursor of a general pollutant listed under paragraphs (a)(1)(xxxvii)(A) or (B) of this section, provided that a constituent or precursor pollutant may only be regulated under NSR as part of regulation of the general pollutant.

(xxxviii) Reviewing authority means the State air pollution control agency, local agency, other State agency, Indian tribe, or other agency authorized by the Administrator to carry out a permit program under this section and
§ 51.166, or the Administrator in the case of EPA-implemented permit programs under § 52.21.

(xxxix) Project means a physical change in, or change in the method of operation of, an existing major stationary source.

(XL) Best available control technology (BACT) means an emissions limitation (including a visible emissions standard) based on the maximum degree of reduction for each regulated NSR pollutant which would be emitted from any proposed major stationary source or major modification which the reviewing authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs,

determines is achievable for such source or modification through application of production processes or available methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control of such pollutant. In no event shall application of best available control technology result in emissions of any pollutant which would exceed the emissions allowed by any applicable standard under 40 CFR part 60 or 61. If the reviewing authority determines that technological or economic limitations on the application of measurement methodology to a particular emissions unit would make the imposition of an emissions standard infeasible, a design, equipment, work practice, operational standard, or combination thereof, may be prescribed instead to satisfy the requirement for the application of BACT. Such standard shall, to the degree possible, set forth the emissions reduction achievable by implementation of such design, equipment, work practice or operation, and shall provide for compliance by means which achieve equivalent results.

(XLi) Prevention of Significant Deterioration (PSD) permit means any permit that is issued under a major source preconstruction permit program that has been approved by the Administrator and incorporated into the plan to implement the requirements of
§ 51.166 of this chapter, or under the program in § 52.21 of this chapter.

(XLii) Federal Land Manager means, with respect to any lands in the United States, the Secretary of the department with authority over such lands.

(2) Applicability procedures. (i) Each plan shall adopt a preconstruction review program to satisfy the requirements of sections 172(c)(5) and 173 of the Act for any area designated nonattainment for any national ambient air quality standard under subpart C of 40 CFR part 81. Such a program shall apply to any new major stationary source or major modification that is major for the pollutant for which the area is designated nonattainment under section 107(d)(1)(A)(i) of the Act, if the stationary source or modification would locate anywhere in the designated

nonattainment area.

(ii) Each plan shall use the specific provisions of paragraphs (a)(2)(ii)(A) through (F) of this section. Deviations from these provisions will be approved only if the State specifically

demonstrates that the submitted provisions are more stringent than or at least as stringent in all respects as the corresponding provisions in paragraphs (a)(2)(ii)(A) through (F) of this section.

(A) Except as otherwise provided in paragraphs (a)(2)(iii) and (iv) of this
section, and consistent with the definition of major modification contained in paragraph (a)(1)(v)(A) of this section, a project is a major modification for a regulated NSR pollutant if it causes two types of

emissions increases

—a significant emissions increase (as defined in paragraph (a)(1)(xxvii) of this section), and a significant net emissions increase (as defined in paragraphs (a)(1)(vi) and (x) of this section). The project is not a major modification if it does not cause a significant emissions increase. If the project causes a significant emissions increase, then the project is a major modification only if it also results in a significant net emissions increase.

(B) The procedure for calculating (before beginning actual construction) whether a significant emissions increase ( i.e. , the first step of the process) will occur depends upon the type of emissions units being modified, according to paragraphs (a)(2)(ii)(C) through (F) of this section. The procedure for calculating (before beginning actual construction) whether a significant net emissions increase will occur at the major stationary source ( i.e.

, the second step of the process) is contained in the definition in paragraph (a)(1)(vi) of this section. Regardless of any such preconstruction projections, a major modification results if the project causes a significant emissions increase and a significant net emissions increase.

(C) Actual-to-projected-actual applicability test for projects that only involve existing emissions units. A significant emissions increase of a regulated NSR pollutant is projected to

occur if the sum of the difference between the projected actual emissions (as defined in paragraph (a)(1)(xxviii) of this section) and the baseline actual emissions (as defined in paragraphs (a)(1)(xxxv)(A) and (B) of this section, as applicable), for each existing emissions unit, equals or exceeds the significant amount for that pollutant (as defined in paragraph (a)(1)(x) of this section).

(D) Actual-to-potential test for projects that only involve construction of a new emissions unit(s). A significant emissions increase of a regulated NSR pollutant is projected to occur if the

sum of the difference between the potential to emit (as defined in paragraph (a)(1)(iii) of this section) from each new emissions unit following completion of the project and the baseline actual emissions (as defined in paragraph (a)(1)(xxxv)(C) of this section) of these units before the project equals or exceeds the significant amount for that pollutant (as defined in paragraph (a)(1)(x) of this section).

(E) Emission test for projects that

involve Clean Units. For a project that will be constructed and operated at a Clean Unit without causing the

emissions unit to lose its Clean Unit designation, no emissions increase is

deemed to occur.

(F) Hybrid test for projects that involve multiple types of emissions

units. A significant emissions increase of a regulated NSR pollutant is projected

to occur if the sum of the emissions increases for each emissions unit, using the method specified in paragraphs (a)(2)(ii)(C) through (E) of this section as applicable with respect to each


### 80249 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

emissions unit, for each type of emissions unit equals or exceeds the significant amount for that pollutant (as defined in paragraph (a)(1)(x) of this section). For example, if a project involves both an existing emissions unit and a Clean Unit, the projected increase is determined by summing the values determined using the method specified in paragraph (a)(2)(ii)(C) of this section for the existing unit and using the method specified in paragraph (a)(2)(ii)(E) of this section for the Clean

Unit.

(iii) The plan shall require that for any major stationary source for a PAL for a regulated NSR pollutant, the major stationary source shall comply with requirements under paragraph (f) of this

section.

(iv) The plan shall require that an owner or operator undertaking a PCP (as defined in paragraph (a)(1)(xxv) of this section) shall comply with the requirements under paragraph (e) of this

section.

(3) * * * (ii) * * * (H) Decreases in actual emissions resulting from the installation of add-on control technology or application of pollution prevention measures that were relied upon in designating an emissions unit as a Clean Unit or a project as a PCP

cannot be used as offsets.

(I) Decreases in actual emissions occurring at a Clean Unit cannot be used as offsets, except as provided in paragraphs (c)(8) and (d)(10) of this section. Similarly, decreases in actual emissions occurring at a PCP cannot be used as offsets, except as provided in paragraph (e)(6)(iv) of this section.

(J) The total tonnage of increased emissions, in tons per year, resulting from a major modification that must be

offset in accordance with section 173 of the Act shall be determined by summing

the difference between the allowable emissions after the modification (as defined by paragraph (a)(1)(xi) of this section) and the actual emissions before the modification (as defined in paragraph (a)(1)(xii) of this section) for

each emissions unit.

* * * * *

(6) Each plan shall provide that the following specific provisions apply to projects at existing emissions units at a major stationary source (other than projects at a Clean Unit or at a source with a PAL) in circumstances where there is a reasonable possibility that a project that is not a part of a major modification may result in a significant

emissions increase and the owner or operator elects to use the method specified in paragraphs (a)(1)(xxviii)(B)( 1 ) through ( 3 ) of this section for calculating projected actual

emissions. Deviations from these provisions will be approved only if the State specifically demonstrates that the submitted provisions are more stringent than or at least as stringent in all respects as the corresponding provisions in paragraphs (a)(6)(i) through (v) of this

section.

(i) Before beginning actual construction of the project, the owner or operator shall document and maintain a record of the following information:

(A) A description of the project;
(B) Identification of the emissions unit(s) whose emissions of a regulated NSR pollutant could be affected by the project; and

(C) A description of the applicability test used to determine that the project is not a major modification for any regulated NSR pollutant, including the baseline actual emissions, the projected
actual emissions, the amount of emissions excluded under paragraph (a)(1)(xxviii)(B)( 3 ) of this section and an explanation for why such amount was excluded, and any netting calculations, if applicable.

(ii) If the emissions unit is an existing electric utility steam generating unit, before beginning actual construction, the owner or operator shall provide a copy of the information set out in paragraph (a)(6)(i) of this section to the reviewing authority. Nothing in this paragraph (a)(6)(ii) shall be construed to require the owner or operator of such a unit to obtain any determination from the reviewing authority before beginning actual construction.

(iii) The owner or operator shall monitor the emissions of any regulated NSR pollutant that could increase as a result of the project and that is emitted by any emissions units identified in paragraph (a)(6)(i)(B) of this section; and

calculate and maintain a record of the annual emissions, in tons per year on a calendar year basis, for a period of 5 years following resumption of regular operations after the change, or for a period of 10 years following resumption of regular operations after the change if the project increases the design capacity or potential to emit of that regulated NSR pollutant at such emissions unit.

(iv) If the unit is an existing electric utility steam generating unit, the owner or operator shall submit a report to the reviewing authority within 60 days after the end of each year during which records must be generated under paragraph (a)(6)(iii) of this section setting out the unit ’ s annual emissions during the year that preceded submission of the report. (v) If the unit is an existing unit other than an electric utility steam generating unit, the owner or operator shall submit a report to the reviewing authority if the annual emissions, in tons per year, from the project identified in paragraph (a)(6)(i) of this section, exceed the baseline actual emissions (as documented and maintained pursuant to paragraph (a)(6)(i)(C) of this section, by a significant amount (as defined in paragraph (a)(1)(x) of this section) for that regulated NSR pollutant, and if

such emissions differ from the preconstruction projection as documented and maintained pursuant to paragraph (a)(6)(i)(C) of this section. Such report shall be submitted to the reviewing authority within 60 days after the end of such year. The report shall contain the following:

(A) The name, address and telephone number of the major stationary source;

(B) The annual emissions as calculated pursuant to paragraph (a)(6)(iii) of this section; and

(C) Any other information that the owner or operator wishes to include in the report ( e.g. , an explanation as to why the emissions differ from the preconstruction projection).

(7) Each plan shall provide that the owner or operator of the source shall make the information required to be documented and maintained pursuant to paragraph (a)(6) of this section available for review upon a request for inspection by the reviewing authority or the general public pursuant to the requirements contained in
§ 70.4(b)(3)(viii) of this chapter.

* * * * *

(c) Clean Unit Test for emissions units that are subject to LAER. The plan shall provide an owner or operator of a major stationary source the option of using the

Clean Unit Test to determine whether

emissions increases at a Clean Unit are part of a project that is a major modification according to the provisions in paragraphs (c)(1) through (9) of this

section.

(1) Applicability. The provisions of this paragraph (c) apply to any emissions unit for which the reviewing authority has issued a major NSR permit within the past 10 years.

(2) General provisions for Clean Units. The provisions in paragraphs (c)(2)(i) through (v) of this section apply to a

Clean Unit.

(i) Any project for which the owner or operator begins actual construction after

the effective date of the Clean Unit designation (as determined in accordance with paragraph (c)(4) of this section) and before the expiration date (as determined in accordance with


### 80250 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

paragraph (c)(5) of this section) will be

considered to have occurred while the

emissions unit was a Clean Unit.

(ii) If a project at a Clean Unit does not cause the need for a change in the emission limitations or work practice requirements in the permit for the unit that were adopted in conjunction with LAER and the project would not alter any physical or operational

characteristics that formed the basis for the LAER determination as specified in paragraph (c)(6)(iv) of this section, the

emissions unit remains a Clean Unit.

(iii) If a project causes the need for a change in the emission limitations or work practice requirements in the permit for the unit that were adopted in conjunction with LAER or the project would alter any physical or operational

characteristics that formed the basis for the LAER determination as specified in paragraph (c)(6)(iv) of this section, then the emissions unit loses its designation as a Clean Unit upon issuance of the necessary permit revisions (unless the unit requalifies as a Clean Unit pursuant to paragraph (c)(3)(iii) of this section). If the owner or operator begins actual construction on the project without first applying to revise the emissions unit ’ s permit, the Clean Unit designation ends immediately prior to the time when actual construction begins.

(iv) A project that causes an emissions unit to lose its designation as a Clean Unit is subject to the applicability requirements of paragraphs (a)(2)(ii)(A) through (D) and paragraph (a)(2)(ii)(F) of

this section as if the emissions unit is

not a Clean Unit.

(v) Certain Emissions Units with PSD permits. For emissions units that meet the requirements of paragraphs (c)(2)(v)(A) and (B) of this section, the

BACT level of emissions reductions and/or work practice requirements shall satisfy the requirement for LAER in meeting the requirements for Clean Units under paragraphs (c)(3) through (8) of this section. For these emissions units, all requirements for the LAER determination under paragraphs (c)(2)(ii) and (iii) of this section shall also apply to the BACT permit terms
and conditions. In addition, the requirements of paragraph (c)(7)(i)(B) of this section do not apply to emissions units that qualify for Clean Unit status under this paragraph (c)(2)(v).

(A) The emissions unit must have received a PSD permit within the last 10 years and such permit must require the emissions unit to comply with BACT.

(B) The emissions unit must be located in an area that was redesignated

as nonattainment for the relevant pollutant(s) after issuance of the PSD permit and before the effective date of the Clean Unit Test provisions in the

area.

(3) Qualifying or re-qualifying to use the Clean Unit applicability test. An emissions unit automatically qualifies

as a Clean Unit when the unit meets the criteria in paragraphs (c)(3)(i) and (ii) of this section. After the original Clean Unit designation expires in accordance with paragraph (c)(5) of this section or is lost pursuant to paragraph (c)(2)(iii) of this section, such emissions unit may re-qualify as a Clean Unit under either paragraph (c)(3)(iii) of this section, or under the Clean Unit provisions inparagraph (d) of this section. To requalify as a Clean Unit under paragraph (c)(3)(iii) of this section, the emissions unit must obtain a new major NSR permit issued through the applicable nonattainment major NSR program and meet all the criteria in paragraph (c)(3)(iii) of this section. Clean Unit designation applies individually for each pollutant emitted by the emissions

unit.

(i) Permitting requirement. The

emissions unit must have received a major NSR permit within the past 10 years. The owner or operator must maintain and be able to provide

information that would demonstrate that this permitting requirement is met.

(ii) Qualifying air pollution control technologies. Air pollutant emissions

from the emissions unit must be reduced through the use of an air pollution control technology (which includes pollution prevention as defined under paragraph (a)(1)(xxvi) of this section or work practices) that meets both the following requirements in paragraphs (c)(3)(ii)(A) and (B) of this

section.

(A) The control technology achieves

the LAER level of emissions reductions as determined through issuance of a major NSR permit within the past 10 years. However, the emissions unit is not eligible for Clean Unit designation if

the LAER determination resulted in no requirement to reduce emissions below
the level of a standard, uncontrolled, new emissions unit of the same type.

(B) The owner or operator made an

investment to install the control technology. For the purpose of this
determination, an investment includes expenses to research the application of a pollution prevention technique to the emissions unit or expenses to apply a pollution prevention technique to an

emissions unit.

(iii) Re-qualifying for the Clean Unit designation. The emissions unit must obtain a new major NSR permit thatrequires compliance with the currentday LAER, and the emissions unit must meet the requirements in paragraphs (c)(3)(i) and (c)(3)(ii) of this section.

(4) Effective date of the Clean Unit designation. The effective date of an

emissions unit ’ s Clean Unit designation (that is, the date on which the owner or operator may begin to use the Clean Unit Test to determine whether a project at the emissions unit is a major modification) is determined according to the applicable paragraph (c)(4)(i) or (c)(4)(ii) of this section.

(i) Original Clean Unit designation, and emissions units that re-qualify as Clean Units by implementing a new control technology to meet current-day

LAER. The effective date is the date the

emissions unit ’ s air pollution control technology is placed into service, or 3 years after the issuance date of the major NSR permit, whichever is earlier, but no sooner than the date that provisions for the Clean Unit applicability test are approved by the Administrator for incorporation into the plan and become

effective for the State in which the unit

is located.

(ii) Emissions units that re-qualify for the Clean Unit designation using an existing control technology. The effective date is the date the new, major NSR permit is issued.

(5) Clean Unit expiration. An

emissions unit ’ s Clean Unit designation expires (that is, the date on which the owner or operator may no longer use the

Clean Unit Test to determine whether a project affecting the emissions unit is, or is part of, a major modification) according to the applicable paragraph (c)(5)(i) or (ii) of this section.

(i) Original Clean Unit designation, and emissions units that re-qualify by implementing new control technology to meet current-day LAER. For any emissions unit that automatically qualifies as a Clean Unit under paragraphs (c)(3)(i) and (ii) of this section, the Clean Unit designation expires 10 years after the effective date, or the date the equipment went into
service, whichever is earlier; or, it expires at any time the owner or operator fails to comply with the provisions for maintaining Clean Unit designation in paragraph (c)(7) of this

section.

(ii) Emissions units that re-qualify for the Clean Unit designation using an existing control technology. For any emissions unit that re-qualifies as a Clean Unit under paragraph (c)(3)(iii) of this section, the Clean Unit designation expires 10 years after the effective date; or, it expires any time the owner or operator fails to comply with the provisions for maintaining the Clean Unit Designation in paragraph (c)(7) of

this section.


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(6) Required title V permit content for

a Clean Unit. After the effective date of the Clean Unit designation, and in accordance with the provisions of the applicable title V permit program under part 70 or part 71 of this chapter, but no later than when the title V permit is renewed, the title V permit for the major stationary source must include the following terms and conditions in paragraphs (c)(6)(i) through (vi) of this

section related to the Clean Unit.

(i) A statement indicating that the emissions unit qualifies as a Clean Unit and identifying the pollutant(s) for which this Clean Unit designation applies.

(ii) The effective date of the Clean Unit designation. If this date is not known when the Clean Unit designation is initially recorded in the title V permit ( e.g. , because the air pollution control technology is not yet in service), the permit must describe the event that will determine the effective date ( e.g. , the date the control technology is placed into service). Once the effective date is determined, the owner or operator must notify the reviewing authority of the exact date. This specific effective date

must be added to the source ’ s title V permit at the first opportunity, such as a modification, revision, reopening, or renewal of the title V permit for any
reason, whichever comes first, but in no

case later than the next renewal.

(iii) The expiration date of the Clean Unit designation. If this date is not known when the Clean Unit designation is initially recorded into the title V permit ( e.g. , because the air pollution control technology is not yet in service), then the permit must describe the event that will determine the expiration date ( e.g. , the date the control technology is placed into service). Once the expiration
date is determined, the owner or operator must notify the reviewing authority of the exact date. The expiration date must be added to the

source ’ s title V permit at the first opportunity, such as a modification, revision, reopening, or renewal of the title V permit for any reason, whichever
comes first, but in no case later than the

next renewal.

(iv) All emission limitations and work practice requirements adopted in conjunction with the LAER, and any physical or operational characteristics

that formed the basis for the LAER determination ( e.g. , possibly the

emissions unit ’ s capacity or throughput).

(v) Monitoring, recordkeeping, and reporting requirements as necessary to

demonstrate that the emissions unit

continues to meet the criteria for maintaining the Clean Unit designation. (See paragraph (c)(7) of this section.)

(vi) Terms reflecting the owner or

operator ’ s duties to maintain the Clean Unit designation and the consequences of failing to do so, as presented in paragraph (c)(7) of this section.

(7) Maintaining the Clean Unit designation. To maintain the Clean Unit designation, the owner or operator must

conform to all the restrictions listed in paragraphs (c)(7)(i) through (iii) of this section. This paragraph (c)(7) applies independently to each pollutant for

which the emissions unit has the Clean Unit designation. That is, failing to

conform to the restrictions for one pollutant affects Clean Unit designation only for that pollutant.

(i) The Clean Unit must comply with the emission limitation(s) and/or work practice requirements adopted in conjunction with the LAER that is recorded in the major NSR permit, and subsequently reflected in the title V permit.

(A) The owner or operator may not make a physical change in or change in the method of operation of the Clean

Unit that causes the emissions unit to

function in a manner that is inconsistent with the physical or operational

characteristics that formed the basis for the LAER determination ( e.g. , possibly

the emissions unit ’ s capacity or throughput).

(B) The Clean Unit may not emit

above a level that has been offset.

(ii) The Clean Unit must comply with any terms and conditions in the title V permit related to the unit ’ s Clean Unit designation.

(iii) The Clean Unit must continue to control emissions using the specific air pollution control technology that was the basis for its Clean Unit designation.

If the emissions unit or control technology is replaced, then the Clean Unit designation ends.

(8) Offsets and netting at Clean Units. Emissions changes that occur at a Clean Unit must not be included in calculating a significant net emissions increase (that
is, must not be used in a ‘‘ netting analysis ’’ ), or be used for generating

offsets unless such use occurs before the

effective date of the Clean Unit designation, or after the Clean Unit designation expires; or, unless the

emissions unit reduces emissions below the level that qualified the unit as a
Clean Unit. However, if the Clean Unit

reduces emissions below the level that qualified the unit as a Clean Unit, then, the owner or operator may generate a

credit for the difference between the level that qualified the unit as a Clean

Unit and the new emission limitation if such reductions are surplus, quantifiable, and permanent. For purposes of generating offsets, the reductions must also be federally enforceable. For purposes of determining creditable net emissions increases and decreases, the reductions must also be enforceable as a practical

matter.

(9) Effect of redesignation on the Clean Unit designation. The Clean Unit designation of an emissions unit is not affected by redesignation of the

attainment status of the area in which it is located. That is, if a Clean Unit is

located in an attainment area and the area is redesignated to nonattainment, its Clean Unit designation is not affected. Similarly, redesignation from

nonattainment to attainment does not affect the Clean Unit designation. However, if an existing Clean Unit designation expires, it must re-qualify under the requirements that are currently applicable in the area.

(d) Clean Unit provisions for

emissions units that achieve an emission limitation comparable to

LAER. The plan shall provide an owner or operator of a major stationary source the option of using the Clean Unit Test

to determine whether emissions increases at a Clean Unit are part of a project that is a major modification according to the provisions in paragraphs (d)(1) through (11) of this

section.

(1) Applicability. The provisions of this paragraph (d) apply to emissions units which do not qualify as Clean Units under paragraph (c) of this section, but which are achieving a level of emissions control comparable to LAER, as determined by the reviewing authority in accordance with this paragraph (d).

(2) General provisions for Clean Units. The provisions in paragraphs (d)(2)(i) through (iv) of this section apply to a Clean Unit (designated under this paragraph (d)).

(i) Any project for which the owner or operator begins actual construction after

the effective date of the Clean Unit designation (as determined in accordance with paragraph (d)(5) of this section) and before the expiration date (as determined in accordance with paragraph (d)(6) of this section) will be

considered to have occurred while the

emissions unit was a Clean Unit.

(ii) If a project at a Clean Unit does not cause the need for a change in the emission limitations or work practice requirements in the permit for the unit that have been determined (pursuant to paragraph (d)(4) of this section) to be comparable to LAER, and the project would not alter any physical or operational characteristics that formed


### 80252 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

the basis for determining that the

emissions unit ’ s control technology

achieves a level of emissions control comparable to LAER as specified in paragraph (d)(8)(iv) of this section, the

emissions unit remains a Clean Unit.

(iii) If a project causes the need for a change in the emission limitations or work practice requirements in the permit for the unit that have been determined (pursuant to paragraph (d)(4) of this section) to be comparable to LAER, or the project would alter any physical or operational characteristics that formed the basis for determining

that the emissions unit ’ s control technology achieves a level of emissions control comparable to LAER as specified in paragraph (d)(8)(iv) of this section,

then the emissions unit loses its designation as a Clean Unit upon issuance of the necessary permit revisions (unless the unit re-qualifies as a Clean Unit pursuant to paragraph (d)(3)(iv) of this section). If the owner or operator begins actual construction on the project without first applying to

revise the emissions unit ’ s permit, the Clean Unit designation ends immediately prior to the time when actual construction begins.

(iv) A project that causes an emissions unit to lose its designation as a Clean Unit is subject to the applicability requirements of paragraphs (a)(2)(ii)(A) through (D) and paragraph (a)(2)(ii)(F) of

this section as if the emissions unit were

never a Clean Unit.

(3) Qualifying or re-qualifying to use the Clean Unit applicability test. An emissions unit qualifies as a Clean Unit

when the unit meets the criteria in paragraphs (d)(3)(i) through (iii) of this section. After the original Clean Unit designation expires in accordance with paragraph (d)(6) of this section or is lost pursuant to paragraph (d)(2)(iii) of thissection, such emissions unit may requalify as a Clean Unit under either paragraph (d)(3)(iv) of this section, or under the Clean Unit provisions inparagraph (c) of this section. To requalify as a Clean Unit under paragraph (d)(3)(iv) of this section, the emissions unit must obtain a new permit issued pursuant to the requirements in paragraphs (d)(7) and (8) of this section and meet all the criteria in paragraph (d)(3)(iv) of this section. The reviewing authority will make a separate Clean Unit designation for each pollutant emitted by the emissions unit for which the emissions unit qualifies as a Clean

Unit.

(i) Qualifying air pollution control technologies. Air pollutant emissions

from the emissions unit must be reduced through the use of air pollution control technology (which includes pollution prevention as defined under paragraph (a)(1)(xxvi) of this section or work practices) that meets both the following requirements in paragraphs (d)(3)(i)(A) and (B) of this section.

(A) The owner or operator has

demonstrated that the emissions unit ’ s control technology is comparable to LAER according to the requirements of paragraph (d)(4) of this section. However, the emissions unit is not eligible for the Clean Unit designation if

its emissions are not reduced below the level of a standard, uncontrolled emissions unit of the same type ( e.g. , if

the LAER determinations to which it is compared have resulted in a

determination that no control measures are required).

(B) The owner or operator made an

investment to install the control technology. For the purpose of this determination, an investment includes expenses to research the application of a pollution prevention technique to the

emissions unit or to retool the unit to apply a pollution prevention technique.

(ii) Impact of emissions from the unit. The reviewing authority must determine

that the allowable emissions from the

emissions unit will not cause or contribute to a violation of any national ambient air quality standard or PSD increment, or adversely impact an air quality related value (such as visibility)

that has been identified for a Federal Class I area by a Federal Land Manager

and for which information is available to the general public.

(iii) Date of installation. An emissions unit may qualify as a Clean Unit even if the control technology, on which the Clean Unit designation is based, was

installed before the effective date of plan requirements to implement the requirements of this paragraph (d)(3)(iii). However, for such emissions units, the owner or operator must apply for the Clean Unit designation within 2 years after the plan requirements become effective. For technologies installed after the plan requirements become effective, the owner or operator must apply for the Clean Unit designation at the time the control technology is installed.

(iv) Re-qualifying as a Clean Unit. The

emissions unit must obtain a new permit (pursuant to requirements in paragraphs (d)(7) and (8) of this section)

that demonstrates that the emissions

unit ’ s control technology is achieving a level of emission control comparable to current-day LAER, and the emissions unit must meet the requirements in paragraphs (d)(3)(i)(A) and (d)(3)(ii) of

this section.

(4) Demonstrating control effectiveness comparable to LAER. The owner or operator may demonstrate that

the emissions unit ’ s control technology is comparable to LAER for purposes of paragraph (d)(3)(i) of this section according to either paragraph (d)(4)(i) or (ii) of this section. Paragraph (d)(4)(iii) of this section specifies the time for making this comparison.

(i) Comparison to previous LAER

determinations. The administrator

maintains an on-line data base of previous determinations of RACT, BACT, and LAER in the RACT/BACT/ LAER Clearinghouse (RBLC). The

emissions unit ’ s control technology is presumed to be comparable to LAER if

it achieves an emission limitation that is at least as stringent as any one of the five best-performing similar sources for

which a LAER determination has been made within the preceding 5 years, and

for which information has been entered into the RBLC. The reviewing authority shall also compare this presumption to any additional LAER determinations of which it is aware, and shall consider any information on achieved-in-practice pollution control technologies provided during the public comment period, to determine whether any presumptive

determination that the control technology is comparable to LAER is

correct.

(ii) The substantially-as-effective test. The owner or operator may demonstrate

that the emissions unit ’ s control technology is substantially as effective as LAER. In addition, any other person may present evidence related to whether the control technology is substantially as effective as LAER during the public participation process required under paragraph (d)(7) of this section. The reviewing authority shall consider such evidence on a case-by-case basis and

determine whether the emissions unit ’ s air pollution control technology is substantially as effective as LAER.

(iii) Time of comparison. (A) Emissions units with control technologies that are installed before the effective date of plan requirements implementing this paragraph. The owner or operator of an emissions unit whose control technology is installed before the effective date of plan requirements implementing this paragraph (d) may, at its option, either

demonstrate that the emission limitation achieved by the emissions unit ’ s control technology is comparable to the LAER requirements that applied at the time the control technology was installed, or

demonstrate that the emission limitation achieved by the emissions unit ’ s control technology is comparable to current-day LAER requirements. The expiration date of the Clean Unit designation will depend on which option the owner or


### 80253 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

operator uses, as specified in paragraph (d)(6) of this section.

(B) Emissions units with control technologies that are installed after the effective date of plan requirements implementing this paragraph. The owner or operator must demonstrate that the emission limitation achieved by

the emissions unit ’ s control technology is comparable to current-day LAER requirements.

(5) Effective date of the Clean Unit designation. The effective date of an

emissions unit ’ s Clean Unit designation (that is, the date on which the owner or operator may begin to use the Clean Unit Test to determine whether a project involving the emissions unit is a major modification) is the date that the permit required by paragraph (d)(7) of this

section is issued or the date that the

emissions unit ’ s air pollution control technology is placed into service,

whichever is later.

(6) Clean Unit expiration. If the owner or operator demonstrates that the emission limitation achieved by the

emissions unit ’ s control technology is comparable to the LAER requirements that applied at the time the control technology was installed, then the Clean Unit designation expires 10 years from the date that the control technology was
installed. For all other emissions units, the Clean Unit designation expires 10 years from the effective date of the Clean Unit designation, as determined according to paragraph (d)(5) of this
section. In addition, for all emissions units, the Clean Unit designation expires any time the owner or operator fails to comply with the provisions for maintaining the Clean Unit designation in paragraph (d)(9) of this section.

(7) Procedures for designating

emissions units as Clean Units. The reviewing authority shall designate an emissions unit a Clean Unit only by issuing a permit through a permitting program that has been approved by the

Administrator and that conforms with the requirements of §§ 51.160 through 51.164 of this chapter including requirements for public notice of the proposed Clean Unit designation and opportunity for public comment. Such permit must also meet the requirements in paragraph (d)(8).

(8) Required permit content. The permit required by paragraph (d)(7) of

this section shall include the terms and conditions set forth in paragraphs (d)(8)(i) through (vi) of this section.

Such terms and conditions shall be incorporated into the major stationary

source ’ s title V permit in accordance with the provisions of the applicable title V permit program under part 70 or part 71 of this chapter, but no later than when the title V permit is renewed.

(i) A statement indicating that the emissions unit qualifies as a Clean Unit and identifying the pollutant(s) for which this designation applies.

(ii) The effective date of the Clean Unit designation. If this date is not known when the reviewing authority issues the permit ( e.g. , because the air pollution control technology is not yet in service), then the permit must

describe the event that will determine the effective date ( e.g. , the date the control technology is placed into service). Once the effective date is known, then the owner or operator must notify the reviewing authority of the exact date. This specific effective date

must be added to the source ’ s title V permit at the first opportunity, such as a modification, revision, reopening, or renewal of the title V permit for any
reason, whichever comes first, but in no

case later than the next renewal.

(iii) The expiration date of the Clean Unit designation. If this date is not known when the reviewing authority issues the permit ( e.g. , because the air pollution control technology is not yet in service), then the permit must

describe the event that will determine the expiration date ( e.g. , the date the control technology is placed into service). Once the expiration date is known, then the owner or operator must notify the reviewing authority of the exact date. The expiration date must be

added to the source ’ s title V permit at the first opportunity, such as a modification, revision, reopening, or renewal of the title V permit for any
reason, whichever comes first, but in no

case later than the next renewal.

(iv) All emission limitations and work practice requirements adopted in conjunction with emission limitations necessary to assure that the control technology continues to achieve an emission limitation comparable to LAER, and any physical or operational

characteristics that formed the basis for determining that the emissions unit ’ s control technology achieves a level of emissions control comparable to LAER ( e.g. , possibly the emissions unit ’ s capacity or throughput).

(v) Monitoring, recordkeeping, and reporting requirements as necessary to

demonstrate that the emissions unit

continues to meet the criteria for maintaining its Clean Unit designation. (See paragraph (d)(9) of this section.)

(vi) Terms reflecting the owner or

operator ’ s duties to maintain the Clean Unit designation and the consequences of failing to do so, as presented in paragraph (d)(9) of this section. (9) Maintaining Clean Unit designation. To maintain Clean Unit designation, the owner or operator must

conform to all the restrictions listed in paragraphs (d)(9)(i) through (v) of this section. This paragraph (d)(9) applies independently to each pollutant for which the reviewing authority has designated the emissions unit a Clean Unit. That is, failing to conform to the restrictions for one pollutant affects the Clean Unit designation only for that pollutant.

(i) The Clean Unit must comply with the emission limitation(s) and/or work practice requirements adopted to ensure that the control technology continues to achieve emission control comparable to

LAER.

(ii) The owner or operator may not make a physical change in or change in the method of operation of the Clean

Unit that causes the emissions unit to

function in a manner that is inconsistent with the physical or operational

characteristics that formed the basis for

the determination that the control technology is achieving a level of emission control that is comparable to LAER ( e.g. , possibly the emissions unit ’ s capacity or throughput).

(iii) The Clean Unit may not emit

above a level that has been offset.

(iv) The Clean Unit must comply with any terms and conditions in the title V permit related to the unit ’ s Clean Unit designation.

(v) The Clean Unit must continue to control emissions using the specific air pollution control technology that was the basis for its Clean Unit designation.

If the emissions unit or control technology is replaced, then the Clean Unit designation ends.

(10) Offsets and Netting at Clean

Units. Emissions changes that occur at

a Clean Unit must not be included in calculating a significant net emissions increase (that is, must not be used in a

‘‘ netting analysis ’’ ), or be used for generating offsets unless such use occurs before the effective date of plan requirements adopted to implement this paragraph (d) or after the Clean Unit designation expires; or, unless the

emissions unit reduces emissions below the level that qualified the unit as a
Clean Unit. However, if the Clean Unit

reduces emissions below the level that qualified the unit as a Clean Unit, then the owner or operator may generate a

credit for the difference between the level that qualified the unit as a Clean

Unit and the emissions unit ’ s new emission limitation if such reductions are surplus, quantifiable, and permanent. For purposes of generating
offsets, the reductions must also be federally enforceable. For purposes of


### 80254 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

determining creditable net emissions increases and decreases, the reductions must also be enforceable as a practical

matter.

(11) Effect of redesignation on the Clean Unit designation. The Clean Unit designation of an emissions unit is not affected by redesignation of the

attainment status of the area in which it is located. That is, if a Clean Unit is

located in an attainment area and the area is redesignated to nonattainment, its Clean Unit designation is not affected. Similarly, redesignation from

nonattainment to attainment does not affect the Clean Unit designation. However, if a Clean Unit ’ s designation expires or is lost pursuant to paragraphs (c)(2)(iii) and (d)(2)(iii) of this section, it must re-qualify under the requirements that are currently applicable.

(e) PCP exclusion procedural requirements. Each plan shall include provisions for PCPs equivalent to those contained in paragraphs (e)(1) through (6) of this section.

(1) Before an owner or operator begins actual construction of a PCP, the owner or operator must either submit a notice to the reviewing authority if the project is listed in paragraphs (a)(1)(xxv)(A) through (F) of this section, or if the project is not listed in paragraphs (a)(1)(xxv)(A) through (F) of this section, then the owner or operator must submit a permit application and obtain approval to use the PCP exclusion from the reviewing authority consistent with the requirements in paragraph (e)(5) of this section. Regardless of whether the owner or operator submits a notice or a permit application, the project must meet the requirements in paragraph (e)(2) of this section, and the notice or permit application must contain the information required in paragraph (e)(3)

of this section.

(2) Any project that relies on the PCP exclusion must meet the requirements in paragraphs (e)(2)(i) and (ii) of this

section.

(i) Environmentally beneficial analysis. The environmental benefit

from the emission reductions of pollutants regulated under the Act must outweigh the environmental detriment of emissions increases in pollutants regulated under the Act. A statement that a technology from paragraphs (a)(1)(xxv)(A) through (F) of this section is being used shall be presumed to satisfy this requirement.

(ii) Air quality analysis. The emissions increases from the project

will not cause or contribute to a violation of any national ambient air quality standard or PSD increment, or adversely impact an air quality related value (such as visibility) that has been identified for a Federal Class I area by a Federal Land Manager and for which information is available to the general public.

(3) Content of notice or permit application. In the notice or permit application sent to the reviewing authority, the owner or operator must
include, at a minimum, the information listed in paragraphs (e)(3)(i) through (v)

of this section.

(i) A description of the project. (ii) The potential emissions increases and decreases of any pollutant regulated under the Act and the projected emissions increases and decreases using the methodology in paragraph (a)(2)(ii)
of this section, that will result from the project, and a copy of the environmentally beneficial analysis required by paragraph (e)(2)(i) of this

section.

(iii) A description of monitoring and recordkeeping, and all other methods, to be used on an ongoing basis to demonstrate that the project is environmentally beneficial. Methods

should be sufficient to meet the requirements in part 70 and part 71.

(iv) A certification that the project will be designed and operated in a manner that is consistent with proper industry and engineering practices, in a

manner that is consistent with the environmentally beneficial analysis and air quality analysis required by paragraphs (e)(2)(i) and (ii) of this
section, with information submitted in the notice or permit application, and in such a way as to minimize, within the physical configuration and operational standards usually associated with the emissions control device or strategy, emissions of collateral pollutants.

(v) Demonstration that the PCP will not have an adverse air quality impact ( e.g. , modeling, screening level modeling results, or a statement that the

collateral emissions increase is included within the parameters used in the most recent modeling exercise) as required by paragraph (e)(2)(ii) of this section. An air quality impact analysis is not required for any pollutant which will not experience a significant emissions increase as a result of the project.

(4) Notice process for listed projects. For projects listed in paragraphs (a)(1)(xxv)(A) through (F) of this section, the owner or operator may begin actual construction of the project immediately after notice is sent to the reviewing authority (unless otherwise prohibited under requirements of the applicable plan). The owner or operator shall respond to any requests by its reviewing authority for additional information that the reviewing authority determines is necessary to evaluate the suitability of the project for the PCP exclusion.

(5) Permit process for unlisted projects. Before an owner or operator may begin actual construction of a PCP project that is not listed in paragraphs (a)(1)(xxv)(A) through (F) of this section, the project must be approved by the reviewing authority and recorded in a plan-approved permit or title V permit using procedures that are consistent

with §§ 51.160 and 51.161 of this chapter. This includes the requirement that the reviewing authority provide the public with notice of the proposed approval, with access to the environmentally beneficial analysis and the air quality analysis, and provide at least a 30-day period for the public and

the Administrator to submit comments. The reviewing authority must address all material comments received by the end of the comment period before taking final action on the permit.

(6) Operational requirements. Upon installation of the PCP, the owner or operator must comply with the requirements of paragraphs (e)(6)(i) through (iii) of this section.

(i) General duty. The owner or operator must operate the PCP in a manner consistent with proper industry and engineering practices, in a manner

that is consistent with the environmentally beneficial analysis and air quality analysis required by paragraphs (e)(2)(i) and (ii) of this
section, with information submitted in the notice or permit application required by paragraph (e)(3) of this section, and in such a way as to minimize, within the physical configuration and operational standards usually associated with the emissions control device or strategy, emissions of collateral pollutants.

(ii) Recordkeeping. The owner or operator must maintain copies on site of the environmentally beneficial analysis, the air quality impacts analysis, and monitoring and other emission records to prove that the PCP operated consistent with the general duty requirements in paragraph (e)(6)(i) of

this section.

(iii) Permit requirements. The owner or operator must comply with any provisions in the plan-approved permit or title V permit related to use and approval of the PCP exclusion.

(iv) Generation of emission reduction

credits. Emission reductions created by

a PCP shall not be included in calculating a significant net emissions increase, or be used for generating
offsets, unless the emissions unit further reduces emissions after qualifying for the PCP exclusion ( e.g. , taking an operational restriction on the hours of


### 80255 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

operation). The owner or operator may generate a credit for the difference

between the level of reduction which was used to qualify for the PCP

exclusion and the new emission

limitation if such reductions are surplus, quantifiable, and permanent. For purposes of generating offsets, the reductions must also be federally enforceable. For purposes of determining creditable net emissions
increases and decreases, the reductions must also be enforceable as a practical

matter.

(f) Actuals PALs. The plan shall provide for PALs according to the provisions in paragraphs (f)(1) through (15) of this section.

(1) Applicability. (i) The reviewing authority may approve the use of an actuals PAL for any existing major stationary source (except as provided in paragraph (f)(1)(ii) of this section) if the PAL meets the requirements in paragraphs (f)(1) through (15) of this section. The term

‘‘ PAL ’’ shall mean ‘‘ actuals PAL ’’ throughout paragraph (f) of this section.

(ii) The reviewing authority shall not

allow an actuals PAL for VOC or NO X for any major stationary source located

in an extreme ozone nonattainment

area.

(iii) Any physical change in or change in the method of operation of a major stationary source that maintains its total

source-wide emissions below the PAL level, meets the requirements in paragraphs (f)(1) through (15) of this section, and complies with the PAL permit:

(A) Is not a major modification for the PAL pollutant;

(B) Does not have to be approved through the plan ’ s nonattainment major NSR program; and

(C) Is not subject to the provisions in paragraph (a)(5)(ii) of this section (restrictions on relaxing enforceable emission limitations that the major stationary source used to avoid applicability of the nonattainment major NSR program).

(iv) Except as provided under paragraph (f)(1)(iii)(C) of this section, a major stationary source shall continue to comply with all applicable Federal or State requirements, emission limitations, and work practice requirements that were established prior

to the effective date of the PAL.

(2) Definitions. The plan shall use the definitions in paragraphs (f)(2)(i) through (xi) of this section for the purpose of developing and implementing regulations that authorize

the use of actuals PALs consistent with paragraphs (f)(1) through (15) of this

section. When a term is not defined in these paragraphs, it shall have the meaning given in paragraph (a)(1) of this

section or in the Act.

(i) Actuals PAL for a major stationary

source means a PAL based on the baseline actual emissions (as defined in paragraph (a)(1)(xxxv) of this section) of all emissions units (as defined in paragraph (a)(1)(vii) of this section) at
the source, that emit or have the potential to emit the PAL pollutant.

(ii) Allowable emissions means

‘‘ allowable emissions ’’ as defined in paragraph (a)(1)(xi) of this section, except as this definition is modified according to paragraphs (f)(2)(ii)(A) through (B) of this section.

(A) The allowable emissions for any

emissions unit shall be calculated considering any emission limitations that are enforceable as a practical matter

on the emissions unit ’ s potential to

emit.

(B) An emissions unit ’ s potential to emit shall be determined using the definition in paragraph (a)(1)(iii) of this section, except that the words ‘‘ or enforceable as a practical matter ’’

should be added after ‘‘ federally

enforceable. ’’

(iii) Small emissions unit means an emissions unit that emits or has the potential to emit the PAL pollutant in an amount less than the significant level for that PAL pollutant, as defined in paragraph (a)(1)(x) of this section or in
the Act, whichever is lower.

(iv) Major emissions unit means: (A) Any emissions unit that emits or has the potential to emit 100 tons per year or more of the PAL pollutant in an

attainment area; or

(B) Any emissions unit that emits or has the potential to emit the PAL pollutant in an amount that is equal to or greater than the major source threshold for the PAL pollutant as defined by the Act for nonattainment areas. For example, in accordance with the definition of major stationary source in section 182(c) of the Act, an emissions unit would be a major

emissions unit for VOC if the emissions

unit is located in a serious ozone

nonattainment area and it emits or has the potential to emit 50 or more tons of VOC per year.

(v) Plantwide applicability limitation (PAL) means an emission limitation expressed in tons per year, for a pollutant at a major stationary source, that is enforceable as a practical matter

and established source-wide in accordance with paragraphs (f)(1) through (f)(15) of this section.

(vi) PAL effective date generally

means the date of issuance of the PAL permit. However, the PAL effective date for an increased PAL is the date any emissions unit which is part of the PAL major modification becomes operational and begins to emit the PAL pollutant.

(vii) PAL effective period means the period beginning with the PAL effective date and ending 10 years later.

(viii) PAL major modification means, notwithstanding paragraphs (a)(1)(v) and (vi) of this section (the definitions for major modification and net emissions increase), any physical change in or change in the method of operation of the PAL source that causes it to emit the PAL pollutant at a level equal to or greater than the PAL.

(ix) PAL permit means the major NSR permit, the minor NSR permit, or the State operating permit under a program that is approved into the plan, or the title V permit issued by the reviewing authority that establishes a PAL for a major stationary source.

(x) PAL pollutant means the pollutant

for which a PAL is established at a major stationary source.

(xi) Significant emissions unit means an emissions unit that emits or has the potential to emit a PAL pollutant in an amount that is equal to or greater than the significant level (as defined in paragraph (a)(1)(x) of this section or in the Act, whichever is lower) for that PAL pollutant, but less than the amount that would qualify the unit as a major emissions unit as defined in paragraph (f)(2)(iv) of this section.

(3) Permit application requirements. As part of a permit application requesting a PAL, the owner or operator of a major stationary source shall submit the following information to the reviewing authority for approval:

(i) A list of all emissions units at the source designated as small, significant or major based on their potential to emit. In addition, the owner or operator
of the source shall indicate which, if any, Federal or State applicable requirements, emission limitations or work practices apply to each unit.

(ii) Calculations of the baseline actual emissions (with supporting documentation). Baseline actual

emissions are to include emissions associated not only with operation of
the unit, but also emissions associated with startup, shutdown and

malfunction.

(iii) The calculation procedures that the major stationary source owner or operator proposes to use to convert the monitoring system data to monthly

emissions and annual emissions based on a 12-month rolling total for each month as required by paragraph (f)(13)(i) of this section.

(4) General requirements for establishing PALs.


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(i) The plan allows the reviewing authority to establish a PAL at a major stationary source, provided that at a minimum, the requirements in paragraphs (f)(4)(i)(A) through (G) of

this section are met.

(A) The PAL shall impose an annual emission limitation in tons per year, that is enforceable as a practical matter, for the entire major stationary source. For each month during the PAL effective period after the first 12 months of establishing a PAL, the major stationary source owner or operator shall show that the sum of the monthly

emissions from each emissions unit under the PAL for the previous 12

consecutive months is less than the PAL (a 12-month average, rolled monthly). For each month during the first 11
months from the PAL effective date, the major stationary source owner or operator shall show that the sum of the preceding monthly emissions from the

PAL effective date for each emissions

unit under the PAL is less than the PAL.

(B) The PAL shall be established in a PAL permit that meets the public participation requirements in paragraph (f)(5) of this section.

(C) The PAL permit shall contain all the requirements of paragraph (f)(7) of

this section.

(D) The PAL shall include fugitive emissions, to the extent quantifiable,

from all emissions units that emit or have the potential to emit the PAL pollutant at the major stationary source.

(E) Each PAL shall regulate emissions of only one pollutant.

(F) Each PAL shall have a PAL effective period of 10 years.

(G) The owner or operator of the major stationary source with a PAL shall comply with the monitoring, recordkeeping, and reporting requirements provided in paragraphs (f)(12) through (14) of this section for

each emissions unit under the PAL through the PAL effective period.

(ii) At no time (during or after the PAL effective period) are emissions reductions of a PAL pollutant, which occur during the PAL effective period, creditable as decreases for purposes of offsets under paragraph (a)(3)(ii) of this

section unless the level of the PAL is reduced by the amount of such

emissions reductions and such

reductions would be creditable in the

absence of the PAL.

(5) Public participation requirement for PALs. PALs for existing major stationary sources shall be established, renewed, or increased through a procedure that is consistent with
§§ 51.160 and 51.161 of this chapter. This includes the requirement that the reviewing authority provide the public with notice of the proposed approval of a PAL permit and at least a 30-day period for submittal of public comment. The reviewing authority must address all material comments before taking final action on the permit.

(6) Setting the 10-year actuals PAL

level. The plan shall provide that the actuals PAL level for a major stationary

source shall be established as the sum of the baseline actual emissions (as defined in paragraph (a)(1)(xxxv) of this section) of the PAL pollutant for each emissions unit at the source; plus an amount equal to the applicable significant level for the PAL pollutant under paragraph (a)(1)(x) of this section or under the Act, whichever is lower. When establishing the actuals PAL level, for a PAL pollutant, only one consecutive 24-month period must be

used to determine the baseline actual emissions for all existing emissions units. However, a different consecutive 24-month period may be used for each different PAL pollutant. Emissions

associated with units that were permanently shutdown after this 24- month period must be subtracted from

the PAL level. Emissions from units on which actual construction began after the 24-month period must be added to the PAL level in an amount equal to the potential to emit of the units. The reviewing authority shall specify a reduced PAL level(s) (in tons/yr) in the PAL permit to become effective on the future compliance date(s) of any applicable Federal or State regulatory requirement(s) that the reviewing authority is aware of prior to issuance of the PAL permit. For instance, if the source owner or operator will be required to reduce emissions from

industrial boilers in half from baseline emissions of 60 ppm NO X to a new rule limit of 30 ppm, then the permit shall

contain a future effective PAL level that is equal to the current PAL level reduced by half of the original baseline emissions of such unit(s).

(7) Contents of the PAL permit. The plan shall require that the PAL permit
contain, at a minimum, the information in paragraphs (f)(7)(i) through (x) of this

section.

(i) The PAL pollutant and the applicable source-wide emission limitation in tons per year.

(ii) The PAL permit effective date and the expiration date of the PAL (PAL effective period).

(iii) Specification in the PAL permit that if a major stationary source owner or operator applies to renew a PAL in accordance with paragraph (f)(10) of this

section before the end of the PAL effective period, then the PAL shall not expire at the end of the PAL effective period. It shall remain in effect until a revised PAL permit is issued by the reviewing authority.

(iv) A requirement that emission calculations for compliance purposes include emissions from startups,

shutdowns and malfunctions.

(v) A requirement that, once the PAL expires, the major stationary source is subject to the requirements of paragraph (f)(9) of this section.

(vi) The calculation procedures that the major stationary source owner or operator shall use to convert the monitoring system data to monthly

emissions and annual emissions based on a 12-month rolling total for each month as required by paragraph (f)(13)(i) of this section.

(vii) A requirement that the major stationary source owner or operator

monitor all emissions units in accordance with the provisions under paragraph (f)(12) of this section.

(viii) A requirement to retain the records required under paragraph (f)(13) of this section on site. Such records may

be retained in an electronic format.

(ix) A requirement to submit the reports required under paragraph (f)(14) of this section by the required

deadlines.

(x) Any other requirements that the reviewing authority deems necessary to implement and enforce the PAL.

(8) PAL effective period and reopening of the PAL permit. The plan shall require the information in paragraphs (f)(8)(i) and (ii) of this

section.

(i) PAL effective period. The reviewing authority shall specify a PAL effective period of 10 years.

(ii) Reopening of the PAL permit. (A) During the PAL effective period, the plan shall require the reviewing authority to reopen the PAL permit to:

( 1 ) Correct typographical/calculation errors made in setting the PAL or reflect

a more accurate determination of

emissions used to establish the PAL.

( 2 ) Reduce the PAL if the owner or operator of the major stationary source

creates creditable emissions reductions for use as offsets under paragraph (a)(3)(ii) of this section.

( 3 ) Revise the PAL to reflect an increase in the PAL as provided under paragraph (f)(11) of this section.

(B) The plan shall provide the reviewing authority discretion to reopen the PAL permit for the following:

( 1 ) Reduce the PAL to reflect newly applicable Federal requirements (for example, NSPS) with compliance dates

after the PAL effective date.

( 2 ) Reduce the PAL consistent with any other requirement, that is enforceable as a practical matter, and


### 80257 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

that the State may impose on the major stationary source under the plan.

( 3 ) Reduce the PAL if the reviewing authority determines that a reduction is necessary to avoid causing or contributing to a NAAQS or PSD
increment violation, or to an adverse impact on an air quality related value

that has been identified for a Federal Class I area by a Federal Land Manager

and for which information is available to the general public.

(C) Except for the permit reopening in paragraph (f)(8)(ii)(A)( 1 ) of this section for the correction of typographical/

calculation errors that do not increase the PAL level, all other reopenings shall

be carried out in accordance with the public participation requirements of paragraph (f)(5) of this section.

(9) Expiration of a PAL. Any PAL

which is not renewed in accordance with the procedures in paragraph (f)(10) of this section shall expire at the end of the PAL effective period, and the requirements in paragraphs (f)(9)(i) through (v) of this section shall apply.

(i) Each emissions unit (or each group of emissions units) that existed under the PAL shall comply with an allowable

emission limitation under a revised permit established according to the procedures in paragraphs (f)(9)(i)(A) through (B) of this section.

(A) Within the time frame specified for PAL renewals in paragraph (f)(10)(ii) of this section, the major stationary source shall submit a proposed

allowable emission limitation for each emissions unit (or each group of
emissions units, if such a distribution is more appropriate as decided by the reviewing authority) by distributing the PAL allowable emissions for the major stationary source among each of the

emissions units that existed under the PAL. If the PAL had not yet been adjusted for an applicable requirement that became effective during the PAL effective period, as required under paragraph (f)(10)(v) of this section, such

distribution shall be made as if the PAL had been adjusted.

(B) The reviewing authority shall

decide whether and how the PAL

allowable emissions will be distributed and issue a revised permit incorporating
allowable limits for each emissions unit, or each group of emissions units, as the reviewing authority determines is appropriate.

(ii) Each emissions unit(s) shall comply with the allowable emission limitation on a 12-month rolling basis. The reviewing authority may approve the use of monitoring systems (source testing, emission factors, etc.) other than

CEMS, CERMS, PEMS or CPMS to demonstrate compliance with the

allowable emission limitation.

(iii) Until the reviewing authority issues the revised permit incorporating
allowable limits for each emissions unit, or each group of emissions units, as required under paragraph (f)(9)(i)(A) of
this section, the source shall continue to comply with a source-wide, multi-unit emissions cap equivalent to the level of

the PAL emission limitation.

(iv) Any physical change or change in the method of operation at the major stationary source will be subject to the nonattainment major NSR requirements if such change meets the definition of major modification in paragraph (a)(1)(v) of this section.

(v) The major stationary source owner or operator shall continue to comply with any State or Federal applicable requirements (BACT, RACT, NSPS, etc.) that may have applied either during the PAL effective period or prior to the PAL effective period except for those

emission limitations that had been established pursuant to paragraph (a)(5)(ii) of this section, but were eliminated by the PAL in accordance with the provisions in paragraph (f)(1)(iii)(C) of this section.

(10) Renewal of a PAL.
(i) The reviewing authority shall follow the procedures specified in paragraph (f)(5) of this section in approving any request to renew a PAL for a major stationary source, and shall provide both the proposed PAL level and a written rationale for the proposed PAL level to the public for review and comment. During such public review, any person may propose a PAL level for the source for consideration by the reviewing authority.

(ii) Application deadline. The plan shall require that a major stationary source owner or operator shall submit a timely application to the reviewing authority to request renewal of a PAL. A timely application is one that is submitted at least 6 months prior to, but
not earlier than 18 months from, the date of permit expiration. This deadline for application submittal is to ensure that the permit will not expire before the permit is renewed. If the owner or operator of a major stationary source submits a complete application to renew the PAL within this time period, then

the PAL shall continue to be effective until the revised permit with the

renewed PAL is issued.

(iii) Application requirements. The application to renew a PAL permit shall contain the information required in paragraphs (f)(10)(iii)(A) through (D) of

this section. (A) The information required in paragraphs (f)(3)(i) through (iii) of this

section.

(B) A proposed PAL level. (C) The sum of the potential to emit

of all emissions units under the PAL (with supporting documentation).

(D) Any other information the owner or operator wishes the reviewing authority to consider in determining the appropriate level for renewing the PAL.

(iv) PAL adjustment. In determining whether and how to adjust the PAL, the reviewing authority shall consider the options outlined in paragraphs (f)(10)(iv)(A) and (B) of this section. However, in no case may any such adjustment fail to comply with paragraph (f)(10)(iv)(C) of this section.

(A) If the emissions level calculated in accordance with paragraph (f)(6) of this section is equal to or greater than 80 percent of the PAL level, the reviewing authority may renew the PAL at the same level without considering the factors set forth in paragraph (f)(10)(iv)(B) of this section; or

(B) The reviewing authority may set

the PAL at a level that it determines to be more representative of the source ’ s baseline actual emissions, or that it determines to be appropriate considering air quality needs, advances in control technology, anticipated economic growth in the area, desire to reward or encourage the source ’ s voluntary emissions reductions, or other factors as specifically identified by the reviewing authority in its written

rationale.

(C) Notwithstanding paragraphs (f)(10)(iv)(A) and (B) of this section,

( 1 ) If the potential to emit of the major stationary source is less than the PAL, the reviewing authority shall adjust the PAL to a level no greater than the potential to emit of the source; and

( 2 ) The reviewing authority shall not approve a renewed PAL level higher than the current PAL, unless the major stationary source has complied with the provisions of paragraph (f)(11) of this section (increasing a PAL).

(v) If the compliance date for a State or Federal requirement that applies to the PAL source occurs during the PAL effective period, and if the reviewing authority has not already adjusted for such requirement, the PAL shall be adjusted at the time of PAL permit renewal or title V permit renewal,

whichever occurs first.

(11) Increasing a PAL during the PAL effective period.

(i) The plan shall require that the reviewing authority may increase a PAL emission limitation only if the major stationary source complies with the


### 80258 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

provisions in paragraphs (f)(11)(i)(A) through (D) of this section.

(A) The owner or operator of the major stationary source shall submit a complete application to request an

increase in the PAL limit for a PAL major modification. Such application shall identify the emissions unit(s) contributing to the increase in emissions so as to cause the major stationary

source ’ s emissions to equal or exceed its

PAL.

(B) As part of this application, the major stationary source owner or operator shall demonstrate that the sum

of the baseline actual emissions of the small emissions units, plus the sum of

the baseline actual emissions of the significant and major emissions units assuming application of BACT equivalent controls, plus the sum of the

allowable emissions of the new or modified emissions unit(s) exceeds the

PAL. The level of control that would result from BACT equivalent controls on each significant or major emissions unit shall be determined by conducting a new BACT analysis at the time the application is submitted, unless the emissions unit is currently required to comply with a BACT or LAER requirement that was established within the preceding 10 years. In such a case,

the assumed control level for that emissions unit shall be equal to the

level of BACT or LAER with which that emissions unit must currently comply.

(C) The owner or operator obtains a major NSR permit for all emissions unit(s) identified in paragraph (f)(11)(i)(A) of this section, regardless of the magnitude of the emissions increase resulting from them (that is, no significant levels apply). These emissions unit(s) shall comply with any emissions requirements resulting from the nonattainment major NSR program process (for example, LAER), even though they have also become subject to the PAL or continue to be subject to the

PAL.

(D) The PAL permit shall require that

the increased PAL level shall be effective on the day any emissions unit that is part of the PAL major modification becomes operational and begins to emit the PAL pollutant.

(ii) The reviewing authority shall

calculate the new PAL as the sum of the

allowable emissions for each modified or new emissions unit, plus the sum of

the baseline actual emissions of the significant and major emissions units (assuming application of BACT equivalent controls as determined in accordance with paragraph (f)(11)(i)(B)), plus the sum of the baseline actual

emissions of the small emissions units. (iii) The PAL permit shall be revised

to reflect the increased PAL level pursuant to the public notice requirements of paragraph (f)(5) of this

section.

(12) Monitoring requirements for

PALs.

(i) General Requirements. (A) Each PAL permit must contain enforceable requirements for the monitoring system that accurately determines plantwide emissions of the PAL pollutant in terms of mass per unit of time. Any monitoring system authorized for use in the PAL permit

must be based on sound science and meet generally acceptable scientific procedures for data quality and manipulation. Additionally, the information generated by such system must meet minimum legal requirements for admissibility in a judicial proceeding to enforce the PAL permit.

(B) The PAL monitoring system must employ one or more of the four general monitoring approaches meeting the minimum requirements set forth in paragraphs (f)(12)(ii)(A) through (D) of this section and must be approved by the reviewing authority.

(C) Notwithstanding paragraph (f)(12)(i)(B) of this section, you may also employ an alternative monitoring approach that meets paragraph (f)(12)(i)(A) of this section if approved by the reviewing authority.

(D) Failure to use a monitoring system that meets the requirements of this

section renders the PAL invalid.

(ii) Minimum Performance Requirements for Approved Monitoring Approaches. The following are acceptable general monitoring approaches when conducted in

accordance with the minimum requirements in paragraphs (f)(12)(iii) through (ix) of this section:

(A) Mass balance calculations for activities using coatings or solvents;

(B) CEMS; (C) CPMS or PEMS; and (D) Emission Factors. (iii) Mass Balance Calculations. An owner or operator using mass balance calculations to monitor PAL pollutant emissions from activities using coating or solvents shall meet the following requirements:

(A) Provide a demonstrated means of validating the published content of the PAL pollutant that is contained in or created by all materials used in or at the

emissions unit;

(B) Assume that the emissions unit emits all of the PAL pollutant that is contained in or created by any raw

material or fuel used in or at the
emissions unit, if it cannot otherwise be accounted for in the process; and (C) Where the vendor of a material or
fuel, which is used in or at the emissions unit, publishes a range of pollutant content from such material, the owner or operator must use the highest value of the range to calculate the PAL pollutant emissions unless the reviewing authority determines there is site-specific data or a site-specific monitoring program to support another content within the range.

(iv) CEMS. An owner or operator using CEMS to monitor PAL pollutant emissions shall meet the following requirements:

(A) CEMS must comply with applicable Performance Specifications found in 40 CFR part 60, appendix B;

and

(B) CEMS must sample, analyze and record data at least every 15 minutes while the emissions unit is operating.

(v) CPMS or PEMS. An owner or operator using CPMS or PEMS to monitor PAL pollutant emissions shall meet the following requirements:

(A) The CPMS or the PEMS must be based on current site-specific data demonstrating a correlation between the monitored parameter(s) and the PAL pollutant emissions across the range of operation of the emissions unit; and

(B) Each CPMS or PEMS must sample, analyze, and record data at least every 15 minutes, or at another less frequent interval approved by the reviewing authority, while the emissions unit is operating.

(vi) Emission factors. An owner or operator using emission factors to monitor PAL pollutant emissions shall meet the following requirements:

(A) All emission factors shall be adjusted, if appropriate, to account for the degree of uncertainty or limitations

in the factors ’ development;

(B) The emissions unit shall operate within the designated range of use for the emission factor, if applicable; and

(C) If technically practicable, the owner or operator of a significant

emissions unit that relies on an

emission factor to calculate PAL pollutant emissions shall conductvalidation testing to determine a sitespecific emission factor within 6 months of PAL permit issuance, unless the reviewing authority determines that testing is not required.

(vii) A source owner or operator must record and report maximum potential emissions without considering

enforceable emission limitations or operational restrictions for an emissions unit during any period of time that there is no monitoring data, unless another method for determining emissions during such periods is specified in the PAL permit.


### 80259 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

(viii) Notwithstanding the requirements in paragraphs (f)(12)(iii) through (vii) of this section, where an owner or operator of an emissions unit

cannot demonstrate a correlation between the monitored parameter(s) and the PAL pollutant emissions rate at all operating points of the emissions unit, the reviewing authority shall, at the time of permit issuance:

(A) Establish default value(s) for determining compliance with the PAL based on the highest potential emissions reasonably estimated at such operating point(s); or

(B) Determine that operation of the emissions unit during operating

conditions when there is no correlation between monitored parameter(s) and the PAL pollutant emissions is a violation

of the PAL.

(ix) Re-validation. All data used toestablish the PAL pollutant must be revalidated through performance testing or other scientifically valid means approved by the reviewing authority. Such testing must occur at least once every 5 years after issuance of the PAL.

(13) Recordkeeping requirements. (i) The PAL permit shall require an owner or operator to retain a copy of all records necessary to determine compliance with any requirement of paragraph (f) of this section and of the PAL, including a determination of each

emissions unit ’ s 12-month rolling total emissions, for 5 years from the date of

such record.

(ii) The PAL permit shall require an owner or operator to retain a copy of the following records for the duration of the PAL effective period plus 5 years:

(A) A copy of the PAL permit application and any applications for
revisions to the PAL; and

(B) Each annual certification of compliance pursuant to title V and the data relied on in certifying the compliance.

(14) Reporting and notification requirements. The owner or operator shall submit semi-annual monitoring reports and prompt deviation reports to the reviewing authority in accordance with the applicable title V operating permit program. The reports shall meet the requirements in paragraphs (f)(14)(i) through (iii).

(i) Semi-Annual Report. The semiannual report shall be submitted to the reviewing authority within 30 days of the end of each reporting period. This report shall contain the information required in paragraphs (f)(14)(i)(A) through (G) of this section.

(A) The identification of owner and operator and the permit number.

(B) Total annual emissions (tons/year) based on a 12-month rolling total for each month in the reporting period recorded pursuant to paragraph (f)(13)(i)

of this section.

(C) All data relied upon, including, but not limited to, any Quality Assurance or Quality Control data, in calculating the monthly and annual PAL pollutant emissions.

(D) A list of any emissions units modified or added to the major stationary source during the preceding 6-month period.

(E) The number, duration, and cause of any deviations or monitoring malfunctions (other than the time associated with zero and span calibration checks), and any corrective

action taken.

(F) A notification of a shutdown of any monitoring system, whether the shutdown was permanent or temporary,
the reason for the shutdown, the anticipated date that the monitoring system will be fully operational or replaced with another monitoring system, and whether the emissions unit monitored by the monitoring system continued to operate, and the

calculation of the emissions of the pollutant or the number determined by method included in the permit, as provided by paragraph (f)(12)(vii) of this

section.

(G) A signed statement by the responsible official (as defined by the applicable title V operating permit program) certifying the truth, accuracy, and completeness of the information provided in the report.

(ii) Deviation report. The major stationary source owner or operator shall promptly submit reports of any

deviations or exceedance of the PAL requirements, including periods where no monitoring is available. A report submitted pursuant to § 70.6(a)(3)(iii)(B) of this chapter shall satisfy this reporting requirement. The deviation reports shall be submitted within the time limits prescribed by the applicable program implementing
§ 70.6(a)(3)(iii)(B) of this chapter. The reports shall contain the following

information:

(A) The identification of owner and operator and the permit number;

(B) The PAL requirement that experienced the deviation or that was
exceeded;

(C) Emissions resulting from the
deviation or the exceedance; and

(D) A signed statement by the responsible official (as defined by the applicable title V operating permit program) certifying the truth, accuracy, and completeness of the information provided in the report.

(iii) Re-validation results. The owner or operator shall submit to the reviewing authority the results of any

re-validation test or method within 3 months after completion of such test or

method.

(15) Transition requirements. (i) No reviewing authority may issue a PAL that does not comply with the requirements in paragraphs (f)(1) through (15) of this section after the Administrator has approved regulations incorporating these requirements into a plan.

(ii) The reviewing authority may supersede any PAL which was established prior to the date of approval of the plan by the Administrator with a PAL that complies with the requirements of paragraphs (f)(1) through (15) of this section.

(g) If any provision of this section, or the application of such provision to any person or circumstance, is held invalid,
the remainder of this section, or the application of such provision to persons

or circumstances other than those as to
which it is held invalid, shall not be affected thereby.

5. In 40 CFR 51.166(b)(1)(i)( b) and (b)(5), remove the words ‘‘ any air pollutant subject to regulation under the

Act, ’’ and add, in their place, the words

‘‘ a regulated NSR pollutant. ’’

6. In addition to the amendments set
forth above, section 51.166 is amended:

a. By revising paragraph (a)(1). b. By revising paragraph (a)(6)(i). c. By adding paragraph (a)(7). d. By revising paragraphs (b)(2)(i) and (ii).

e. By revising paragraph (b)(2)(iii)(h ). f. By adding paragraph (b)(2)(iv). g. By revising paragraph (b)(3)(i). h. By revising paragraphs (b)(3)(iii) and (iv).

i. By revising paragraphs (b)(3)(vi)( b) and ( c).

j. By adding paragraph (b)(3)(vi)( d). k. By adding paragraph (b)(3)(viii). l. By revising paragraphs (b)(7) and (8).

m. By revising paragraph (b)(13). n. By revising paragraph (b)(21). o. By removing the following from paragraph (b)(23)(i): Asbestos: 0.007 tpy; Beryllium: 0.0004 tpy; Mercury: 0.1 tpy; and Vinyl Chloride: 1 tpy.

p. By revising paragraph (b)(31). q. By reserving paragraph (b)(32). r. By adding paragraphs (b)(38) through (52).

s. By revising the introductory text of paragraph (i).

t. By removing paragraphs (i)(1) through (3).

u. By re-designating paragraphs (i)(4) through (12) as paragraphs (i)(1) through (9).

v. By revising newly redesignated paragraphs (i)(5)(i)(g ) through ( j).


### 80260 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

w. By removing newly redesignated paragraphs (i)(5)(i)(k) through ( m ).

x. By adding paragraphs (r)(3) through (7).

y. By adding paragraphs (t) through (x).

7. In addition to the amendments set
forth above, in 40 CFR 51.166, remove

the words ‘‘ pollutant subject to regulation under the Act ’’ and add, in their place, the words ‘‘ a regulated NSR pollutant ’’ in the following places:

a. (b)(1)(i)( a ); c. (b)(12); d. (b)(23)(ii); e. newly redesignated (i)(4); and f. (j)(2) and (3).

The revisions and additions read as

follows:

§ 51.166 Prevention of significant deterioration of air quality.

(a)(1) Plan requirements. In accordance with the policy of section 101(b)(1) of the Act and the purposes of section 160 of the Act, each applicable State Implementation Plan and each applicable Tribal Implementation Plan

shall contain emission limitations and such other measures as may be necessary to prevent significant deterioration of air quality.

* * * * *

(6) * * * (i) Any State required to revise its implementation plan by reason of an amendment to this section, including any amendment adopted simultaneously with this paragraph (a)(6)(i), shall adopt and submit such plan revision to the Administrator for approval no later than three years after such amendment is published in the Federal Register

. * * * * *

(7) Applicability. Each plan shall contain procedures that incorporate the requirements in paragraphs (a)(7)(i) through (vi) of this section.

(i) The requirements of this section apply to the construction of any new major stationary source (as defined in paragraph (b)(1) of this section) or any project at an existing major stationary source in an area designated as

attainment or unclassifiable under sections 107(d)(1)(A)(ii) or (iii) of the

Act.

(ii) The requirements of paragraphs (j) through (r) of this section apply to the construction of any new major stationary source or the major modification of any existing major stationary source, except as this section otherwise provides.

(iii) No new major stationary source or major modification to which the requirements of paragraphs (j) through (r)(5) of this section apply shall begin actual construction without a permit that states that the major stationary source or major modification will meet those requirements.

(iv) Each plan shall use the specific provisions of paragraphs (a)(7)(iv)( a ) through ( f

) of this section. Deviations from these provisions will be approved only if the State specifically

demonstrates that the submitted provisions are more stringent than or at least as stringent in all respects as the corresponding provisions in paragraphs (a)(7)(iv)( a ) through ( f

) of this section.
( a ) Except as otherwise provided in paragraphs (a)(7)(v) and (vi) of this
section, and consistent with the definition of major modification contained in paragraph (b)(2) of this section, a project is a major modification for a regulated NSR pollutant if it causes two types of emissions increases

—a significant emissions increase (as defined in paragraph (b)(39) of this section), and a significant net emissions increase (as defined in paragraphs (b)(3) and (b)(23) of this section). The project is not a major modification if it does not cause a significant emissions increase. If the project causes a significant emissions increase, then the project is a major modification only if it also results in a significant net emissions increase.

( b) The procedure for calculating (before beginning actual construction) whether a significant emissions increase ( i.e. , the first step of the process) will occur depends upon the type of emissions units being modified, according to paragraphs (a)(7)(iv)( c) through ( f

) of this section. The procedure for calculating (before beginning actual construction) whether a significant net emissions increase will occur at the major stationary source ( i.e.

, the second step of the process) is contained in the definition in paragraph (b)(3) of this section. Regardless of any such preconstruction projections, a major modification results if the project causes a significant emissions increase and a significant net emissions increase.

( c) Actual-to-projected-actual applicability test for projects that only involve existing emissions units. A significant emissions increase of a regulated NSR pollutant is projected to

occur if the sum of the difference between the projected actual emissions (as defined in paragraph (b)(40) of this section) and the baseline actual emissions (as defined in paragraphs (b)(47)(i) and (ii) of this section) for each existing emissions unit, equals or exceeds the significant amount for that pollutant (as defined in paragraph (b)(23) of this section). ( d) Actual-to-potential test for projects that only involve construction of a new emissions unit(s). A significant emissions increase of a regulated NSR pollutant is projected to occur if the

sum of the difference between the potential to emit (as defined in paragraph (b)(4) of this section) from each new emissions unit following completion of the project and the baseline actual emissions (as defined in paragraph (b)(47)(iii) of this section) of these units before the project equals or exceeds the significant amount for that pollutant (as defined in paragraph (b)(23) of this section).

( e) Emission test for projects that

involve Clean Units. For a project that will be constructed and operated at a Clean Unit without causing the

emissions unit to lose its Clean Unit designation, no emissions increase is

deemed to occur.

( f

) Hybrid test for projects that involve multiple types of emissions units. A significant emissions increase of a regulated NSR pollutant is projected to

occur if the sum of the emissions increases for each emissions unit, using the method specified in paragraphs (a)(7)(iv)( c) through ( e) of this section as applicable with respect to each emissions unit, for each type of emissions unit equals or exceeds the significant amount for that pollutant (as defined in paragraph (b)(23) of this section). For example, if a project involves both an existing emissions unit and a Clean Unit, the projected increase is determined by summing the values determined using the method specified in paragraph (a)(7)(iv)( c) of this section for the existing unit and determined using the method specified in paragraph (a)(7)(iv)( e) of this section for the Clean

Unit.

(v) The plan shall require that for any major stationary source for a PAL for a regulated NSR pollutant, the major stationary source shall comply with requirements under paragraph (w) of

this section.

(vi) The plan shall require that an owner or operator undertaking a PCP (as defined in paragraph (b)(31) of this section) shall comply with the requirements under paragraph (v) of this

section.

* * * * *

(b) * * * (2)(i) Major modification means any physical change in or change in the method of operation of a major stationary source that would result in: a significant emissions increase (as defined in paragraph (b)(39) of this section) of a regulated NSR pollutant (as defined in paragraph (b)(49) of this


### 80261 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

section); and a significant net emissions increase of that pollutant from the major stationary source.

(ii) Any significant emissions increase (as defined at paragraph (b)(39) of this section) from any emissions units or net emissions increase (as defined at paragraph (b)(3) of this section) at a major stationary source that is significant for volatile organic compounds shall be considered significant for ozone.

(iii) * * * (h ) The addition, replacement, or use of a PCP, as defined in paragraph (b)(31) of this section, at an existing emissions unit meeting the requirements of paragraph (v) of this section. A replacement control technology must provide more effective emission control than that of the replaced control technology to qualify for this exclusion.

* * * * *

(iv) This definition shall not apply with respect to a particular regulated NSR pollutant when the major stationary source is complying with the requirements under paragraph (w) of this section for a PAL for that pollutant. Instead, the definition at paragraph (w)(2)(viii) of this section shall apply.

(3)(i) Net emissions increase means, with respect to any regulated NSR pollutant emitted by a major stationary source, the amount by which the sum of the following exceeds zero:

( a ) The increase in emissions from a particular physical change or change in the method of operation at a stationary source as calculated pursuant to paragraph (a)(7)(iv) of this section; and

( b) Any other increases and decreases in actual emissions at the major stationary source that are contemporaneous with the particular change and are otherwise creditable. Baseline actual emissions for calculating

increases and decreases under this paragraph (b)(3)(i)( b ) shall be determined as provided in paragraph (b)(47), except that paragraphs (b)(47)(i)( c) and (b)(47)(ii)( d) of this section shall not apply.

* * * * *

(iii) An increase or decrease in actual emissions is creditable only if:

( a ) It occurs within a reasonable period (to be specified by the reviewing authority); and

( b) The reviewing authority has not relied on it in issuing a permit for the source under regulations approved pursuant to this section, which permit

is in effect when the increase in actual emissions from the particular change
occurs; and

( c) The increase or decrease in
emissions did not occur at a Clean Unit, except as provided in paragraphs (t)(8) and (u)(10) of this section.

(iv) An increase or decrease in actual emissions of sulfur dioxide, particulate matter, or nitrogen oxides that occurs before the applicable minor source baseline date is creditable only if it is required to be considered in calculating

the amount of maximum allowable increases remaining available.

* * * * *

(vi) * * * ( b) It is enforceable as a practical

matter at and after the time that actual construction on the particular change begins;

( c) It has approximately the same qualitative significance for public health

and welfare as that attributed to the increase from the particular change; and

( d) The decrease in actual emissions

did not result from the installation of add-on control technology or application of pollution prevention practices that were relied on in designating an emissions unit as a Clean

Unit under § 52.21(y) or under regulations approved pursuant to paragraph (u) of this section or
§ 51.165(d). That is, once an emissions unit has been designated as a Clean Unit, the owner or operator cannot later

use the emissions reduction from the air pollution control measures that the Clean Unit designation is based on in calculating the net emissions increase for another emissions unit ( i.e. , must not
use that reduction in a ‘‘ netting analysis ’’ for another emissions unit). However, any new emissions reductions that were not relied upon in a PCP excluded pursuant to paragraph (v) of

this section or for the Clean Unit designation are creditable to the extent they meet the requirements in paragraph (v)(6)(iv) of this section for the PCP and paragraph (t)(8) or (u)(10) of this section

for a Clean Unit.

* * * * *

(viii) Paragraph (b)(21)(ii) of this section shall not apply for determining

creditable increases and decreases.

* * * * *

(7) Emissions unit means any part of a stationary source that emits or would have the potential to emit any regulated NSR pollutant and includes an electric utility steam generating unit as defined in paragraph (b)(30) of this section. For purposes of this section, there are two types of emissions units as described in paragraphs (b)(7)(i) and (ii) of this

section.

(i) A new emissions unit is any emissions unit that is (or will be) newly

constructed and that has existed for less than 2 years from the date such emissions unit first operated. (ii) An existing emissions unit is any

emissions unit that does not meet the requirements in paragraph (b)(7)(i) of

this section.

(8) Construction means any physical change or change in the method of operation (including fabrication,
erection, installation, demolition, or modification of an emissions unit) that would result in a change in emissions.

* * * * *

(13)(i) Baseline concentration means that ambient concentration level that

exists in the baseline area at the time of the applicable minor source baseline

date. A baseline concentration is determined for each pollutant for which

a minor source baseline date is

established and shall include:

( a ) The actual emissions, as defined in paragraph (b)(21) of this section, representative of sources in existence on the applicable minor source baseline date, except as provided in paragraph (b)(13)(ii) of this section;

( b ) The allowable emissions of major stationary sources that commenced construction before the major source baseline date, but were not in operation by the applicable minor source baseline

date.

(ii) The following will not be included

in the baseline concentration and will affect the applicable maximum allowable increase(s):

( a ) Actual emissions, as defined in paragraph (b)(21) of this section, from any major stationary source on which construction commenced after the major
source baseline date; and

( b ) Actual emissions increases and decreases, as defined in paragraph (b)(21) of this section, at any stationary source occurring after the minor source

baseline date.

* * * * *

(21)(i) Actual emissions means the actual rate of emissions of a regulated NSR pollutant from an emissions unit,

as determined in accordance with paragraphs (b)(21)(ii) through (iv) of this section, except that this definition shall not apply for calculating whether a significant emissions increase has occurred, or for establishing a PAL under paragraph (w) of this section. Instead, paragraphs (b)(40) and (b)(47) of this section shall apply for those

purposes.

(ii) In general, actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a consecutive 24-month period which precedes the particular date and which is representative of normal source operation. The reviewing authority shall allow the use of a different time period


### 80262 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

upon a determination that it is more representative of normal source operation. Actual emissions shall be calculated using the unit ’ s actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.

(iii) The reviewing authority may presume that source-specific allowable emissions for the unit are equivalent to

the actual emissions of the unit.

(iv) For any emissions unit that has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on

that date.

* * * * *

(31) Pollution control project (PCP) means any activity, set of work practices or project (including pollution prevention as defined under paragraph (b)(38) of this section) undertaken at an existing emissions unit that reduces emissions of air pollutants from such unit. Such qualifying activities or projects can include the replacement or upgrade of an existing emissions control technology with a more effective unit. Other changes that may occur at the source are not considered part of the PCP if they are not necessary to reduce emissions through the PCP. Projects listed in paragraphs (b)(31)(i) through (vi) of this section are presumed to be environmentally beneficial pursuant to paragraph (v)(2)(i) of this section. Projects not listed in these paragraphs may qualify for a case-specific PCP exclusion pursuant to the requirements of paragraphs (v)(2) and (v)(5) of this

section.

(i) Conventional or advanced flue gas desulfurization or sorbent injection for

control of SO 2

.

(ii) Electrostatic precipitators, baghouses, high efficiency multiclones, or scrubbers for control of particulate matter or other pollutants.

(iii) Flue gas recirculation, low-NO Xburners or combustors, selective noncatalytic reduction, selective catalytic reduction, low emission combustion (for IC engines), and oxidation/absorption catalyst for control of NO X

.

(iv) Regenerative thermal oxidizers, catalytic oxidizers, condensers, thermal incinerators, hydrocarbon combustion
flares, biofiltration, absorbers and adsorbers, and floating roofs for storage vessels for control of volatile organic compounds or hazardous air pollutants. For the purpose of this section,

‘‘ hydrocarbon combustion flare ’’ means either a flare used to comply with an applicable NSPS or MACT standard (including uses of flares during startup, shutdown, or malfunction permitted under such a standard), or a flare that

serves to control emissions of waste streams comprised predominately of hydrocarbons and containing no more than 230 mg/dscm hydrogen sulfide.

(v) Activities or projects undertaken to accommodate switching (or partially switching) to an inherently less polluting fuel, to be limited to the following fuel switches:

( a ) Switching from a heavier grade of fuel oil to a lighter fuel oil, or any grade of oil to 0.05 percent sulfur diesel ( i.e.

, from a higher sulfur content #2 fuel or from #6 fuel, to CA 0.05 percent sulfur #2 diesel);

( b) Switching from coal, oil, or any solid fuel to natural gas, propane, or gasified coal;

( c) Switching from coal to wood, excluding construction or demolition waste, chemical or pesticide treated
wood, and other forms of ‘‘ unclean ’’ wood;

( d) Switching from coal to #2 fuel oil (0.5 percent maximum sulfur content);

and

( e) Switching from high sulfur coal to low sulfur coal (maximum 1.2 percent sulfur content).

(vi) Activities or projects undertaken to accommodate switching from the use of one ozone depleting substance (ODS)

to the use of a substance with a lower or zero ozone depletion potential (ODP), including changes to equipment needed to accommodate the activity or project, that meet the requirements of paragraphs (b)(31)(vi)(a) and (b) of this

section.

( a ) The productive capacity of the equipment is not increased as a result of the activity or project.

( b) The projected usage of the new substance is lower, on an ODP-weighted basis, than the baseline usage of the replaced ODS. To make this determination, follow the procedure in paragraphs (b)(31)(vi)(b)(1) through (4)

of this section.

( 1 ) Determine the ODP of the substances by consulting 40 CFR part 82, subpart A, appendices A and B.

( 2 ) Calculate the replaced ODPweighted amount by multiplying the baseline actual usage (using the annualized average of any 24 consecutive months of usage within the past 10 years) by the ODP of the replaced ODS.

( 3 ) Calculate the projected ODPweighted amount by multiplying the projected annual usage of the new substance by its ODP.

( 4 ) If the value calculated in paragraph (b)(31)(vi)(b)(2) of this section

is more than the value calculated in paragraph (b)(31)(vi)(b)(3) of this section, then the projected use of the new substance is lower, on an ODPweighted basis, than the baseline usage of the replaced ODS.

(32) [Reserved]

* * * * *

(38) Pollution prevention means any activity that through process changes, product reformulation or redesign, or substitution of less polluting raw
materials, eliminates or reduces the release of air pollutants (including fugitive emissions) and other pollutants to the environment prior to recycling, treatment, or disposal; it does not mean recycling (other than certain ‘‘ in-process recycling ’’ practices), energy recovery, treatment, or disposal.

(39) Significant emissions increase means, for a regulated NSR pollutant, an increase in emissions that is significant (as defined in paragraph (b)(23) of this section) for that pollutant.

(40)(i) Projected actual emissions
means the maximum annual rate, in tons per year, at which an existing emissions unit is projected to emit a regulated NSR pollutant in any one of the 5 years (12-month period) following the date the unit resumes regular operation after the project, or in any one of the 10 years following that date, if the project involves increasing the

emissions unit ’ s design capacity or its potential to emit that regulated NSR pollutant, and full utilization of the unit would result in a significant emissions increase, or a significant net emissions increase at the major stationary source.

(ii) In determining the projected actual emissions under paragraph (b)(40)(i) of this section (before beginning actual construction), the owner or operator of the major stationary source:

( a ) Shall consider all relevant information, including but not limited to, historical operational data, the

company ’ s own representations, the

company ’ s expected business activity and the company ’ s highest projections of business activity, the company ’ s filings with the State or Federal regulatory authorities, and compliance plans under the approved plan; and

( b ) Shall include fugitive emissions to the extent quantifiable and emissions associated with startups, shutdowns,
and malfunctions; and

( c) Shall exclude, in calculating any

increase in emissions that results from the particular project, that portion of the

unit ’ s emissions following the project that an existing unit could have accommodated during the consecutive 24-month period used to establish the

baseline actual emissions under paragraph (b)(47) of this section and that are also unrelated to the particular


### 80263 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

project, including any increased utilization due to product demand growth; or,

( d) In lieu of using the method set out in paragraphs (b)(40)(ii)( a ) through ( c) of this section, may elect to use the

emissions unit ’ s potential to emit, in tons per year, as defined under paragraph (b)(4) of this section.

(41) Clean Unit means any emissions unit that has been issued a major NSR permit that requires compliance with BACT or LAER, is complying with such BACT/LAER requirements, and qualifies as a Clean Unit pursuant to regulations approved by the Administrator in accordance with paragraph (t) of this section; or any emissions unit that has been designated by a reviewing authority as a Clean Unit, based on the criteria in paragraphs (u)(3)(i) through(iv) of this section, using a planapproved permitting process; or any emissions unit that has been designated as a Clean Unit by the Administrator in accordance with 52.21 (y)(3)(i) through (iv) of this chapter.

(42) Prevention of Significant Deterioration Program (PSD) program means a major source preconstruction permit program that has been approved by the Administrator and incorporated into the plan to implement the requirements of this section, or the program in § 52.21 of this chapter. Any permit issued under such a program is a major NSR permit.

(43) Continuous emissions monitoring system (CEMS) means all of the equipment that may be required to meet the data acquisition and availability requirements of this section, to sample, condition (if applicable), analyze, and provide a record of emissions on a

continuous basis.

(44) Predictive emissions monitoring system (PEMS) means all of the equipment necessary to monitor process and control device operational parameters (for example, control device secondary voltages and electric currents) and other information (for example, gas flow rate, O 2 or CO 2 concentrations), and calculate and record the mass emissions rate (for example, lb/hr) on a continuous basis.

(45) Continuous parameter monitoring system (CPMS) means all of the equipment necessary to meet the data acquisition and availability requirements of this section, to monitor process and control device operational parameters (for example, control device secondary voltages and electric currents) and other information (for example, gas flow rate, O 2 or CO 2 concentrations), and to record average operational parameter value(s) on a

continuous basis. (46) Continuous emissions rate monitoring system (CERMS) means the total equipment required for the determination and recording of the pollutant mass emissions rate (in terms of mass per unit of time).

(47) Baseline actual emissions means the rate of emissions, in tons per year, of a regulated NSR pollutant, as

determined in accordance with paragraphs (b)(47)(i) through (iv) of this

section.

(i) For any existing electric utility steam generating unit, baseline actual emissions means the average rate, in tons per year, at which the unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the 5- year period immediately preceding when the owner or operator begins actual construction of the project. The reviewing authority shall allow the use of a different time period upon a

determination that it is more representative of normal source operation.

( a ) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and

malfunctions.

( b) The average rate shall be adjusteddownward to exclude any noncompliant emissions that occurred while the source was operating above an emission limitation that was legally enforceable during the consecutive 24- month period.

( c) For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-month period must be used to

determine the baseline actual emissions for the emissions units being changed.

A different consecutive 24-month period can be used For each regulated NSR pollutant.

( d) The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by paragraph (b)(47)(i)( b ) of this section.

(ii) For an existing emissions unit (other than an electric utility steam generating unit), baseline actual emissions means the average rate, in tons per year, at which the emissions unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the 10-year period immediately preceding either the date the owner or operator begins actual construction of the project, or the date a complete permit application is received by the reviewing authority for a permit required either under this section or under a plan approved by the Administrator, whichever is earlier, except that the 10-year period shall not include any period earlier than November 15, 1990.

( a ) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and

malfunctions.

( b ) The average rate shall be adjusteddownward to exclude any noncompliant emissions that occurred while the source was operating above an emission limitation that was legally enforceable during the consecutive 24- month period.

( c) The average rate shall be adjusted downward to exclude any emissions

that would have exceeded an emission limitation with which the major stationary source must currently comply, had such major stationary source been required to comply with such limitations during the consecutive 24-month period. However, if an emission limitation is part of a

maximum achievable control technology standard that the Administrator proposed or promulgated under part 63 of this chapter, the baseline actual emissions need only be adjusted if the State has taken credit for

such emissions reductions in an

attainment demonstration or maintenance plan consistent with the requirements of § 51.165(a)(3)(ii)(G).

( d) For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-month period must be used to

determine the baseline actual emissions for the emissions units being changed.

A different consecutive 24-month period can be used For each regulated NSR pollutant.

( e) The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by paragraphs (b)(47)(ii)(b) and (c) of this section.

(iii) For a new emissions unit, the baseline actual emissions for purposes of determining the emissions increase

that will result from the initial construction and operation of such unit shall equal zero; and thereafter, for all other purposes, shall equal the unit ’ s potential to emit.

(iv) For a PAL for a stationary source,

the baseline actual emissions shall be calculated for existing electric utility steam generating units in accordance with the procedures contained in paragraph (b)(47)(i) of this section, for other existing emissions units in


### 80264 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

accordance with the procedures contained in paragraph (b)(47)(ii) of this
section, and for a new emissions unit in accordance with the procedures contained in paragraph (b)(47)(iii) of

this section.

(48) [Reserved] (49) Regulated NSR pollutant, for purposes of this section, means the following:

(i) Any pollutant for which a national ambient air quality standard has been promulgated and any constituents or precursors for such pollutants identified by the Administrator ( e.g. , volatile organic compounds are precursors for ozone);

(ii) Any pollutant that is subject to any standard promulgated under section
111 of the Act;

(iii) Any Class I or II substance subject to a standard promulgated under or established by title VI of the Act; or

(iv) Any pollutant that otherwise is subject to regulation under the Act; except that any or all hazardous air pollutants either listed in section 112 of the Act or added to the list pursuant to section 112(b)(2) of the Act, which have not been delisted pursuant to section 112(b)(3) of the Act, are not regulated NSR pollutants unless the listed hazardous air pollutant is also regulated as a constituent or precursor of a general pollutant listed under section 108 of the

Act.

(50) Reviewing authority means the State air pollution control agency, local agency, other State agency, Indian tribe, or other agency authorized by the Administrator to carry out a permit program under § 51.165 and this
section, or the Administrator in the case of EPA-implemented permit programs

under § 52.21 of this chapter.

(51) Project means a physical change in, or change in method of operation of, an existing major stationary source.

(52) Lowest achievable emission rate (LAER) is as defined in
§ 51.165(a)(1)(xiii).

* * * * *

(i) Exemptions.

* * * * *

(5) * * * (i) * * * (g

) Fluorides

—0.25 μg/m 3 , 24-hour

average;

(h ) Total reduced sulfur

— 10 μg/m 3 , 1- hour average

( i) Hydrogen sulfide

—0.2 μg/m 3 , 1- hour average;

( j) Reduced sulfur compounds

— 10

μg/m 3 , 1-hour average; or

* * * * *

(r) * * * (3) [Reserved] (4) [Reserved] (5) [Reserved] (6) Each plan shall provide that the following specific provisions apply to projects at existing emissions units at a major stationary source (other than projects at a Clean Unit or at a source with a PAL) in circumstances where there is a reasonable possibility that a project that is not a part of a major modification may result in a significant

emissions increase and the owner or operator elects to use the method specified in paragraphs (b)(40)(ii)( a ) through ( c) of this section for calculating projected actual emissions. Deviations from these provisions will be approved only if the State specifically

demonstrates that the submitted provisions are more stringent than or at least as stringent in all respects as the corresponding provisions in paragraphs (r)(6)(i) through (v) of this section.

(i) Before beginning actual construction of the project, the owner or operator shall document and maintain a record of the following information:

( a ) A description of the project;
( b) Identification of the emissions unit(s) whose emissions of a regulated NSR pollutant could be affected by the project; and

( c) A description of the applicability test used to determine that the project is not a major modification for any regulated NSR pollutant, including the baseline actual emissions, the projected
actual emissions, the amount of emissions excluded under paragraph (b)(40)(ii)( c) of this section and an explanation for why such amount was excluded, and any netting calculations, if applicable.

(ii) If the emissions unit is an existing electric utility steam generating unit, before beginning actual construction, the owner or operator shall provide a copy of the information set out in paragraph (r)(6)(i) of this section to the reviewing authority. Nothing in this paragraph (r)(6)(ii) shall be construed to require the owner or operator of such a unit to obtain any determination from the reviewing authority before beginning actual construction.

(iii) The owner or operator shall monitor the emissions of any regulated NSR pollutant that could increase as a result of the project and that is emitted by any emissions unit identified in paragraph (r)(6)(i)( b ) of this section; and

calculate and maintain a record of the annual emissions, in tons per year on a calendar year basis, for a period of 5 years following resumption of regular operations after the change, or for a period of 10 years following resumption of regular operations after the change if the project increases the design capacity or potential to emit of that regulated NSR pollutant at such emissions unit.

(iv) If the unit is an existing electric utility steam generating unit, the owner or operator shall submit a report to the reviewing authority within 60 days after the end of each year during which records must be generated under paragraph (r)(6)(iii) of this section setting out the unit ’ s annual emissions during the calendar year that preceded submission of the report.

(v) If the unit is an existing unit other than an electric utility steam generating unit, the owner or operator shall submit a report to the reviewing authority if the annual emissions, in tons per year, from the project identified in paragraph (r)(6)(i) of this section, exceed the baseline actual emissions (as documented and maintained pursuant to paragraph (r)(6)(i)( c) of this section) by a significant amount (as defined in paragraph (b)(23) of this section) for that regulated NSR pollutant, and if such

emissions differ from the preconstruction projection as documented and maintained pursuant to paragraph (r)(6)(i)( c) of this section. Such report shall be submitted to the reviewing authority within 60 days after the end of such year. The report shall contain the following:

( a ) The name, address and telephone number of the major stationary source;

( b ) The annual emissions as calculated pursuant to paragraph (r)(6)(iii) of this section; and

( c) Any other information that the owner or operator wishes to include in the report ( e.g. , an explanation as to why the emissions differ from the preconstruction projection).

(7) Each plan shall provide that the owner or operator of the source shall make the information required to be documented and maintained pursuant to paragraph (r)(6) of this section available for review upon request for inspection by the reviewing authority or the general public pursuant to the requirements contained in
§ 70.4(b)(3)(viii) of this chapter.

* * * * *

(t) Clean Unit Test for emissions units that are subject to BACT or LAER. The plan shall provide an owner or operator of a major stationary source the option of using the Clean Unit Test to

determine whether emissions increases at a Clean Unit are part of a project that is a major modification according to the provisions in paragraphs (t)(1) through (9) of this section.

(1) Applicability. The provisions of this paragraph (t) apply to any emissions unit for which the reviewing authority has issued a major NSR permit within the past 10 years.


### 80265 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

(2) General provisions for Clean Units. The provisions in paragraphs (t)(2)(i) through (iv) of this section apply to a

Clean Unit.

(i) Any project for which the owner or operator begins actual construction after

the effective date of the Clean Unit designation (as determined in accordance with paragraph (t)(4) of this section) and before the expiration date (as determined in accordance with paragraph (t)(5) of this section) will be

considered to have occurred while the

emissions unit was a Clean Unit.

(ii) If a project at a Clean Unit does not cause the need for a change in the emission limitations or work practice requirements in the permit for the unit that were adopted in conjunction with BACT and the project would not alter any physical or operational

characteristics that formed the basis for the BACT determination as specified in paragraph (t)(6)(iv) of this section, the

emissions unit remains a Clean Unit.

(iii) If a project causes the need for a change in the emission limitations or work practice requirements in the permit for the unit that were adopted in conjunction with BACT or the project would alter any physical or operational

characteristics that formed the basis for the BACT determination as specified in paragraph (t)(6)(iv) of this section, then the emissions unit loses its designation as a Clean Unit upon issuance of the necessary permit revisions (unless the unit re-qualifies as a Clean Unit pursuant to paragraph (t)(3)(iii) of this section). If the owner or operator begins actual construction on the project without first applying to revise the

emissions unit ’ s permit, the Clean Unit designation ends immediately prior to

the time when actual construction begins.

(iv) A project that causes an emissions unit to lose its designation as a Clean Unit is subject to the applicability requirements of paragraphs (a)(7)(iv)( a ) through ( d) and paragraph (a)(7)(iv)( f

) of

this section as if the emissions unit is

not a Clean Unit.

(3) Qualifying or re-qualifying to use the Clean Unit Applicability Test. An emissions unit automatically qualifies

as a Clean Unit when the unit meets the criteria in paragraphs (t)(3)(i) and (ii) of this section. After the original Clean Unit designation expires in accordance with paragraph (t)(5) of this section or is lost pursuant to paragraph (t)(2)(iii) of this section, such emissions unit may re-qualify as a Clean Unit under either paragraph (t)(3)(iii) of this section, or under the Clean Unit provisions inparagraph (u) of this section. To requalify as a Clean Unit under paragraph (t)(3)(iii) of this section, the emissions unit must obtain a new major NSR permit issued through the applicable PSD program and meet all the criteria in paragraph (t)(3)(iii) of this section. The Clean Unit designation applies individually for each pollutant emitted by the emissions unit.

(i) Permitting requirement. The

emissions unit must have received a major NSR permit within the past 10 years. The owner or operator must maintain and be able to provide

information that would demonstrate that this permitting requirement is met.

(ii) Qualifying air pollution control technologies. Air pollutant emissions

from the emissions unit must be reduced through the use of air pollution control technology (which includes pollution prevention as defined under paragraph (b)(38) of this section or work practices) that meets both the following requirements in paragraphs (t)(3)(ii)( a ) and ( b) of this section.

( a ) The control technology achieves

the BACT or LAER level of emissions reductions as determined through issuance of a major NSR permit within the past 10 years. However, the emissions unit is not eligible for the Clean Unit designation if the BACT

determination resulted in no requirement to reduce emissions below
the level of a standard, uncontrolled, new emissions unit of the same type.

( b) The owner or operator made an

investment to install the control technology. For the purpose of this
determination, an investment includes expenses to research the application of a pollution prevention technique to the emissions unit or expenses to apply a pollution prevention technique to an

emissions unit.

(iii) Re-qualifying for the Clean Unit designation. The emissions unit must obtain a new major NSR permit thatrequires compliance with the currentday BACT (or LAER), and the emissions unit must meet the requirements in paragraphs (t)(3)(i) and (t)(3)(ii) of this

section.

(4) Effective date of the Clean Unit designation. The effective date of an

emissions unit ’ s Clean Unit designation (that is, the date on which the owner or operator may begin to use the Clean Unit Test to determine whether a project at the emissions unit is a major modification) is determined according to the applicable paragraph (t)(4)(i) or (t)(4)(ii) of this section.

(i) Original Clean Unit designation, and emissions units that re-qualify as Clean Units by implementing a new control technology to meet current-day

BACT. The effective date is the date the

emissions unit ’ s air pollution control technology is placed into service, or 3 years after the issuance date of the major NSR permit, whichever is earlier, but no sooner than the date that provisions for the Clean Unit applicability test are approved by the Administrator for incorporation into the plan and become

effective for the State in which the unit

is located.

(ii) Emissions Units that re-qualify for the Clean Unit designation using an existing control technology. The effective date is the date the new, major NSR permit is issued.

(5) Clean Unit expiration. An

emissions unit ’ s Clean Unit designation expires (that is, the date on which the owner or operator may no longer use the

Clean Unit Test to determine whether a project affecting the emissions unit is, or is part of, a major modification) according to the applicable paragraph (t)(5)(i) or (ii) of this section.

(i) Original Clean Unit designation, and emissions units that re-qualify by implementing new control technology to meet current-day BACT. For any emissions unit that automatically qualifies as a Clean Unit under paragraphs (t)(3)(i) and (ii) of this section or re-qualifies by implementingnew control technology to meet currentday BACT under paragraph (t)(3)(iii) of this section, the Clean Unit designation expires 10 years after the effective date, or the date the equipment went into service, whichever is earlier; or, it expires at any time the owner or operator fails to comply with the provisions for maintaining the Clean Unit designation in paragraph (t)(7) of

this section.

(ii) Emissions units that re-qualify for the Clean Unit designation using an existing control technology. For any emissions unit that re-qualifies as a Clean Unit under paragraph (t)(3)(iii) of this section using an existing control technology, the Clean Unit designation expires 10 years after the effective date; or, it expires any time the owner or operator fails to comply with the provisions for maintaining the Clean Unit designation in paragraph (t)(7) of

this section.

(6) Required title V permit content for

a Clean Unit. After the effective date of the Clean Unit designation, and in accordance with the provisions of the applicable title V permit program under part 70 or part 71 of this chapter, but no later than when the title V permit is renewed, the title V permit for the major stationary source must include the following terms and conditions related to the Clean Unit in paragraphs (t)(6)(i) through (vi) of this section.

(i) A statement indicating that the emissions unit qualifies as a Clean Unit and identifying the pollutant(s) for


### 80266 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

which this Clean Unit designation applies.

(ii) The effective date of the Clean Unit designation. If this date is not known when the Clean Unit designation is initially recorded in the title V permit ( e.g. , because the air pollution control technology is not yet in service), the permit must describe the event that will determine the effective date ( e.g. , the date the control technology is placed into service). Once the effective date is determined, the owner or operator must notify the reviewing authority of the exact date. This specific effective date

must be added to the source ’ s title V permit at the first opportunity, such as a modification, revision, reopening, or renewal of the title V permit for any reason, whichever comes first, but in no

case later than the next renewal.

(iii) The expiration date of the Clean Unit designation. If this date is not known when the Clean Unit designation is initially recorded into the title V permit ( e.g. , because the air pollution control technology is not yet in service), then the permit must describe the event that will determine the expiration date ( e.g. , the date the control technology is placed into service). Once the expiration date is determined, the owner or operator must notify the reviewing authority of the exact date. The expiration date must be added to the

source ’ s title V permit at the first opportunity, such as a modification, revision, reopening, or renewal of the title V permit for any reason, whichever
comes first, but in no case later than the

next renewal.

(iv) All emission limitations and work practice requirements adopted in conjunction with BACT, and any physical or operational characteristics

that formed the basis for the BACT determination ( e.g. , possibly the

emissions unit ’ s capacity or throughput).

(v) Monitoring, recordkeeping, and reporting requirements as necessary to

demonstrate that the emissions unit

continues to meet the criteria for maintaining the Clean Unit designation. (See paragraph (t)(7) of this section.)

(vi) Terms reflecting the owner or

operator ’ s duties to maintain the Clean Unit designation and the consequences of failing to do so, as presented in paragraph (t)(7) of this section.

(7) Maintaining the Clean Unit designation. To maintain the Clean Unit designation, the owner or operator must

conform to all the restrictions listed in paragraphs (t)(7)(i) through (iii) of this section. This paragraph (t)(7) applies independently to each pollutant for

which the emissions unit has the Clean Unit designation. That is, failing to conform to the restrictions for one pollutant affects the Clean Unit designation only for that pollutant.

(i) The Clean Unit must comply with the emission limitation(s) and/or work practice requirements adopted in conjunction with the BACT that is recorded in the major NSR permit, and subsequently reflected in the title V permit. The owner or operator may not make a physical change in or change in the method of operation of the Clean

Unit that causes the emissions unit to

function in a manner that is inconsistent with the physical or operational

characteristics that formed the basis for the BACT determination ( e.g. , possibly

the emissions unit ’ s capacity or throughput).

(ii) The Clean Unit must comply with any terms and conditions in the title V permit related to the unit ’ s Clean Unit designation.

(iii) The Clean Unit must continue to control emissions using the specific air pollution control technology that was the basis for its Clean Unit designation.

If the emissions unit or control technology is replaced, then the Clean Unit designation ends.

(8) Netting at Clean Units. Emissions changes that occur at a Clean Unit must not be included in calculating a significant net emissions increase (that is, must not be used in a ‘‘ netting analysis ’’ ), unless such use occurs

before the effective date of the Clean Unit designation, or after the Clean Unit designation expires; or, unless the

emissions unit reduces emissions below the level that qualified the unit as a Clean Unit. However, if the Clean Unit

reduces emissions below the level that qualified the unit as a Clean Unit, then the owner or operator may generate a

credit for the difference between the level that qualified the unit as a Clean

Unit and the new emission limitation if such reductions are surplus, quantifiable, and permanent. For purposes of generating offsets, the reductions must also be federally enforceable. For purposes of determining creditable net emissions
increases and decreases, the reductions must also be enforceable as a practical

matter.

(9) Effect of redesignation on the Clean Unit designation. The Clean Unit designation of an emissions unit is not affected by redesignation of the

attainment status of the area in which it
is located. That is, if a Clean Unit is

located in an attainment area and the area is redesignated to nonattainment, its Clean Unit designation is not affected. Similarly, redesignation from

nonattainment to attainment does not affect the Clean Unit designation. However, if an existing Clean Unit designation expires, it must re-qualify under the requirements that are currently applicable in the area.

(u) Clean Unit provisions for

emissions units that achieve an emission limitation comparable to

BACT. The plan shall provide an owner or operator of a major stationary source the option of using the Clean Unit Test

to determine whether emissions increases at a Clean Unit are part of a project that is a major modification according to the provisions in paragraphs (u)(1) through (11) of this

section.

(1) Applicability. The provisions of this paragraph (u) apply to emissions units which do not qualify as Clean Units under paragraph (t) of this section, but which are achieving a level of emissions control comparable to BACT, as determined by the reviewing authority in accordance with this paragraph (u).

(2) General provisions for Clean Units. The provisions in paragraphs (u)(2)(i) through (iv) of this section apply to a

Clean Unit.

(i) Any project for which the owner or operator begins actual construction after

the effective date of the Clean Unit designation (as determined in accordance with paragraph (u)(5) of this section) and before the expiration date (as determined in accordance with paragraph (u)(6) of this section) will be

considered to have occurred while the

emissions unit was a Clean Unit.

(ii) If a project at a Clean Unit does not cause the need for a change in the emission limitations or work practice requirements in the permit for the unit that have been determined (pursuant to paragraph (u)(4) of this section) to be comparable to BACT, and the project would not alter any physical or operational characteristics that formed the basis for determining that the

emissions unit ’ s control technology

achieves a level of emissions control comparable to BACT as specified in paragraph (u)(8)(iv) of this section, the

emissions unit remains a Clean Unit.

(iii) If a project causes the need for a change in the emission limitations or work practice requirements in the permit for the unit that have been determined (pursuant to paragraph (u)(4) of this section) to be comparable to BACT, or the project would alter any physical or operational characteristics that formed the basis for determining

that the emissions unit ’ s control technology achieves a level of emissions control comparable to BACT as specified in paragraph (u)(8)(iv) of this
section, then the emissions unit loses its designation as a Clean Unit upon


### 80267 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

issuance of the necessary permit revisions (unless the unit re-qualifies as a Clean Unit pursuant to paragraph (u)(3)(iv) of this section). If the owner or operator begins actual construction on the project without first applying to

revise the emissions unit ’ s permit, the Clean Unit designation ends immediately prior to the time when actual construction begins.

(iv) A project that causes an emissions unit to lose its designation as a Clean Unit is subject to the applicability requirements of paragraphs (a)(7)(iv)( a ) through ( d) and paragraph (a)(7)(iv)( f

) of

this section as if the emissions unit is

not a Clean Unit.

(3) Qualifying or re-qualifying to use the Clean Unit applicability test. An emissions unit qualifies as a Clean Unit

when the unit meets the criteria in paragraphs (u)(3)(i) through (iii) of this section. After the original Clean Unit designation expires in accordance with paragraph (u)(6) of this section or is lost pursuant to paragraph (u)(2)(iii) of thissection, such emissions unit may requalify as a Clean Unit under either paragraph (u)(3)(iv) of this section, or under the Clean Unit provisions inparagraph (t) of this section. To requalify as a Clean Unit under paragraph (u)(3)(iv) of this section, the emissions unit must obtain a new permit issued pursuant to the requirements in paragraphs (u)(7) and (8) of this section and meet all the criteria in paragraph (u)(3)(iv) of this section. The reviewing authority will make a separate Clean Unit designation for each pollutant emitted by the emissions unit for which the emissions unit qualifies as a Clean

Unit.

(i) Qualifying air pollution control technologies. Air pollutant emissions

from the emissions unit must be reduced through the use of air pollution control technology (which includes pollution prevention as defined under paragraph (b)(38) or work practices) that meets both the following requirements in paragraphs (u)(3)(i)( a ) and ( b) of this

section.

( a ) The owner or operator has

demonstrated that the emissions unit ’ s control technology is comparable to BACT according to the requirements of paragraph (u)(4) of this section.
However, the emissions unit is not eligible for the Clean Unit designation if

its emissions are not reduced below the
level of a standard, uncontrolled emissions unit of the same type ( e.g. , if

the BACT determinations to which it is compared have resulted in a

determination that no control measures are required).

( b ) The owner or operator made an

investment to install the control technology. For the purpose of this determination, an investment includes expenses to research the application of a pollution prevention technique to the

emissions unit or to retool the unit to apply a pollution prevention technique.

(ii) Impact of emissions from the unit. The reviewing authority must determine

that the allowable emissions from the

emissions unit will not cause or contribute to a violation of any national ambient air quality standard or PSD increment, or adversely impact an air quality related value (such as visibility)

that has been identified for a Federal Class I area by a Federal Land Manager

and for which information is available to the general public.

(iii) Date of installation. An emissions unit may qualify as a Clean Unit even if the control technology, on which the Clean Unit designation is based, was

installed before the effective date of plan requirements to implement the requirements of this paragraph (u)(3)(iii). However, for such emissions units, the owner or operator must apply for the Clean Unit designation within 2 years after the plan requirements become effective. For technologies installed after the plan requirements become effective, the owner or operator must apply for the Clean Unit designation at the time the control technology is installed.

(iv) Re-qualifying as a Clean Unit. The

emissions unit must obtain a new permit (pursuant to requirements in paragraphs (u)(7) and (8) of this section)

that demonstrates that the emissions

unit ’ s control technology is achieving a level of emission control comparable to current-day BACT, and the emissions unit must meet the requirements in paragraphs (u)(3)(i)( a ) and (u)(3)(ii) of

this section.

(4) Demonstrating control effectiveness comparable to BACT. The owner or operator may demonstrate that

the emissions unit ’ s control technology is comparable to BACT for purposes of paragraph (u)(3)(i) of this section according to either paragraph (u)(4)(i) or (ii) of this section. Paragraph (u)(4)(iii) of this section specifies the time for making this comparison.

(i) Comparison to previous BACT and

LAER determinations. The

Administrator maintains an on-line data base of previous determinations of
RACT, BACT, and LAER in the RACT/ BACT/LAER Clearinghouse (RBLC). The

emissions unit ’ s control technology is presumed to be comparable to BACT if

it achieves an emission limitation that is equal to or better than the average of the emission limitations achieved by all the

sources for which a BACT or LAER

determination has been made within the preceding 5 years and entered into the RBLC, and for which it is technically feasible to apply the BACT or LAER control technology to the emissions unit. The reviewing authority shall also compare this presumption to any

additional BACT or LAER determinations of which it is aware, and shall consider any information on achieved-in-practice pollution control technologies provided during the public comment period, to determine whether any presumptive determination that the control technology is comparable to

BACT is correct.

(ii) The substantially-as-effective test. The owner or operator may demonstrate

that the emissions unit ’ s control technology is substantially as effective as BACT. In addition, any other person may present evidence related to whether the control technology is substantially as effective as BACT during the public participation process required under paragraph (u)(7) of this section. The reviewing authority shall consider such evidence on a case-by-case basis and

determine whether the emissions unit ’ s air pollution control technology is substantially as effective as BACT.

(iii) Time of comparison. ( a ) Emissions units with control technologies that are installed before the effective date of plan requirements implementing this paragraph. The owner or operator of an emissions unit whose control technology is installed before the effective date of plan requirements implementing this paragraph (u) may, at its option, either

demonstrate that the emission limitation achieved by the emissions unit ’ s control technology is comparable to the BACT requirements that applied at the time the control technology was installed, or

demonstrate that the emission limitation achieved by the emissions unit ’ s control technology is comparable to current-day BACT requirements. The expiration date of the Clean Unit designation will depend on which option the owner or operator uses, as specified in paragraph (u)(6) of this section.

( b ) Emissions units with control technologies that are installed after the effective date of plan requirements implementing this paragraph. The owner or operator must demonstrate that the emission limitation achieved by

the emissions unit ’ s control technology is comparable to current-day BACT requirements.

(5) Effective date of the Clean Unit designation. The effective date of an

emissions unit ’ s Clean Unit designation (that is, the date on which the owner or operator may begin to use the Clean Unit Test to determine whether a project involving the emissions unit is a major


### 80268 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

modification) is the date that the permit required by paragraph (u)(7) of this

section is issued or the date that the

emissions unit ’ s air pollution control technology is placed into service,

whichever is later.

(6) Clean Unit expiration. If the owner or operator demonstrates that the emission limitation achieved by the

emissions unit ’ s control technology is comparable to the BACT requirements that applied at the time the control technology was installed, then the Clean Unit designation expires 10 years from the date that the control technology was installed. For all other emissions units, the Clean Unit designation expires 10 years from the effective date of the Clean Unit designation, as determined according to paragraph (u)(5) of this section. In addition, for all emissions units, the Clean Unit designation expires any time the owner or operator fails to comply with the provisions for maintaining the Clean Unit designation in paragraph (u)(9) of this section.

(7) Procedures for designating

emissions units as Clean Units. The reviewing authority shall designate an emissions unit a Clean Unit only by issuing a permit through a permitting program that has been approved by the

Administrator and that conforms with the requirements of §§ 51.160 through 51.164 of this chapter, including requirements for public notice of the proposed Clean Unit designation and opportunity for public comment. Such permit must also meet the requirements in paragraph (u)(8) of this section.

(8) Required permit content. The permit required by paragraph (u)(7) of

this section shall include the terms and conditions set forth in paragraphs (u)(8)(i) through (vi). Such terms and conditions shall be incorporated into the major stationary source ’ s title V permit in accordance with the provisions of the applicable title V permit program under part 70 or part 71 of this chapter, but no later than when the title V permit is renewed.

(i) A statement indicating that the emissions unit qualifies as a Clean Unit and identifying the pollutant(s) for which the Clean Unit designation applies.

(ii) The effective date of the Clean Unit designation. If this date is not known when the reviewing authority issues the permit ( e.g. , because the air pollution control technology is not yet in service), then the permit must

describe the event that will determine the effective date ( e.g. , the date the control technology is placed into service). Once the effective date is known, then the owner or operator must notify the reviewing authority of the exact date. This specific effective date

must be added to the source ’ s title V permit at the first opportunity, such as a modification, revision, reopening, or renewal of the title V permit for any reason, whichever comes first, but in no

case later than the next renewal.

(iii) The expiration date of the Clean Unit designation. If this date is not known when the reviewing authority issues the permit ( e.g. , because the air pollution control technology is not yet in service), then the permit must

describe the event that will determine the expiration date ( e.g. , the date the control technology is placed into service). Once the expiration date is known, then the owner or operator must notify the reviewing authority of the exact date. The expiration date must be

added to the source ’ s title V permit at the first opportunity, such as a modification, revision, reopening, or renewal of the title V permit for any reason, whichever comes first, but in no

case later than the next renewal.

(iv) All emission limitations and work practice requirements adopted in conjunction with emission limitations necessary to assure that the control technology continues to achieve an emission limitation comparable to BACT, and any physical or operational

characteristics that formed the basis for determining that the emissions unit ’ s control technology achieves a level of emissions control comparable to BACT ( e.g. , possibly the emissions unit ’ s capacity or throughput).

(v) Monitoring, recordkeeping, and reporting requirements as necessary to

demonstrate that the emissions unit

continues to meet the criteria for maintaining its Clean Unit designation. (See paragraph (u)(9) of this section.)

(vi) Terms reflecting the owner or

operator ’ s duties to maintain the Clean Unit designation and the consequences of failing to do so, as presented in paragraph (u)(9) of this section.

(9) Maintaining the Clean Unit designation. To maintain the Clean Unit designation, the owner or operator must

conform to all the restrictions listed in paragraphs (u)(9)(i) through (v) of this section. This paragraph (u)(9) applies independently to each pollutant for which the reviewing authority has designated the emissions unit a Clean Unit. That is, failing to conform to the restrictions for one pollutant affects the Clean Unit designation only for that pollutant.

(i) The Clean Unit must comply with the emission limitation(s) and/or work practice requirements adopted to ensure that the control technology continues to achieve emission control comparable to

BACT. (ii) The owner or operator may not make a physical change in or change in the method of operation of the Clean

Unit that causes the emissions unit to

function in a manner that is inconsistent with the physical or operational

characteristics that formed the basis for

the determination that the control technology is achieving a level of emission control that is comparable to BACT ( e.g. , possibly the emissions

unit ’ s capacity or throughput).

(iii) [Reserved] (iv) The Clean Unit must comply with any terms and conditions in the title V permit related to the unit ’ s Clean Unit designation.

(v) The Clean Unit must continue to control emissions using the specific air pollution control technology that was the basis for its Clean Unit designation.

If the emissions unit or control technology is replaced, then the Clean Unit designation ends.

(10) Netting at Clean Units. Emissions changes that occur at a Clean Unit must not be included in calculating a significant net emissions increase (that
is, must not be used in a ‘‘ netting analysis ’’ ) unless such use occurs before the effective date of plan requirements adopted to implement this paragraph (u) or after the Clean Unit designation expires; or, unless the emissions unit

reduces emissions below the level that qualified the unit as a Clean Unit.
However, if the Clean Unit reduces emissions below the level that qualified
the unit as a Clean Unit, then the owner or operator may generate a credit for the

difference between the level that qualified the unit as a Clean Unit and

the emissions unit ’ s new emission

limitation if such reductions are surplus, quantifiable, and permanent. For purposes of generating offsets, the reductions must also be federally enforceable. For purposes of determining creditable net emissions
increases and decreases, the reductions must also be enforceable as a practical

matter.

(11) Effect of redesignation on the Clean Unit designation. The Clean Unit designation of an emissions unit is not affected by redesignation of the attainment designation of the area in
which it is located. That is, if a Clean

Unit is located in an attainment area and the area is redesignated to
nonattainment, its Clean Unit designation is not affected. Similarly, redesignation from nonattainment to

attainment does not affect the Clean Unit designation. However, if a Clean

Unit ’ s designation expires or is lost pursuant to paragraphs (t)(2)(iii) and(u)(2)(iii) of this section, it must reVerDate Dec<13>2002 09:09 Dec 30, 2002 Jkt 200001 PO 00000 Frm 00084 Fmt 4701 Sfmt 4700 E:\FR\FM\31DER3.SGM 31DER3

### 80269 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

qualify under the requirements that are currently applicable.

(v) PCP exclusion procedural requirements. Each plan shall include provisions for PCPs equivalent to those contained in paragraphs (v)(1) through (6) of this section.

(1) Before an owner or operator begins actual construction of a PCP, the owner or operator must either submit a notice to the reviewing authority if the project is listed in paragraphs (b)(31)(i) through (vi) of this section, or if the project is not listed in paragraphs (b)(31)(i) through (vi) of this section, then the owner or operator must submit a permit application and obtain approval to use the PCP exclusion from the reviewing authority consistent with the requirements in paragraph (v)(5) of this section. Regardless of whether the owner or operator submits a notice or a permit application, the project must meet the requirements in paragraph (v)(2) of this section, and the notice or permit application must contain the information required in paragraph (v)(3)

of this section.

(2) Any project that relies on the PCP exclusion must meet the requirements in paragraphs (v)(2)(i) and (ii) of this

section.

(i) Environmentally beneficial analysis. The environmental benefit

from the emission reductions of pollutants regulated under the Act must outweigh the environmental detriment of emissions increases in pollutants regulated under the Act. A statement that a technology from paragraphs (b)(31)(i) through (vi) of this section is being used shall be presumed to satisfy this requirement.

(ii) Air quality analysis. The emissions increases from the project

will not cause or contribute to a violation of any national ambient air quality standard or PSD increment, or adversely impact an air quality related value (such as visibility) that has been identified for a Federal Class I area by a Federal Land Manager and for which information is available to the general public.

(3) Content of notice or permit application. In the notice or permit application sent to the reviewing authority, the owner or operator must
include, at a minimum, the information listed in paragraphs (v)(3)(i) through (v)

of this section.

(i) A description of the project. (ii) The potential emissions increases and decreases of any pollutant regulated under the Act and the projected emissions increases and decreases using the methodology in paragraph (a)(7)(vi)
of this section, that will result from the project, and a copy of the environmentally beneficial analysis required by paragraph (v)(2)(i) of this

section.

(iii) A description of monitoring and recordkeeping, and all other methods, to be used on an ongoing basis to demonstrate that the project is environmentally beneficial. Methods

should be sufficient to meet the requirements in part 70 and part 71.

(iv) A certification that the project will be designed and operated in a manner that is consistent with proper industry and engineering practices, in a

manner that is consistent with the environmentally beneficial analysis and air quality analysis required by paragraphs (v)(2)(i) and (ii) of this section, with information submitted in the notice or permit application, and in such a way as to minimize, within the physical configuration and operational standards usually associated with the emissions control device or strategy, emissions of collateral pollutants.

(v) Demonstration that the PCP will not have an adverse air quality impact ( e.g. , modeling, screening level modeling results, or a statement that the

collateral emissions increase is included within the parameters used in the most recent modeling exercise) as required by paragraph (v)(2)(ii) of this section. An air quality impact analysis is not required for any pollutant that will not experience a significant emissions increase as a result of the project.

(4) Notice process for listed projects. For projects listed in paragraphs (b)(31)(i) through (vi) of this section, the owner or operator may begin actual construction of the project immediately after notice is sent to the reviewing authority (unless otherwise prohibited under requirements of the applicable plan). The owner or operator shall respond to any requests by its reviewing authority for additional information that the reviewing authority determines is necessary to evaluate the suitability of the project for the PCP exclusion.

(5) Permit process for unlisted projects. Before an owner or operator may begin actual construction of a PCP project that is not listed in paragraphs (b)(31)(i) through (vi) of this section, the project must be approved by the reviewing authority and recorded in a plan-approved permit or title V permit using procedures that are consistent

with §§ 51.160 and 51.161 of this chapter. This includes the requirement that the reviewing authority provide the public with notice of the proposed approval, with access to the environmentally beneficial analysis and the air quality analysis, and provide at least a 30-day period for the public and

the Administrator to submit comments. The reviewing authority must address all material comments received by the end of the comment period before taking final action on the permit.

(6) Operational requirements. Upon installation of the PCP, the owner or operator must comply with the requirements of paragraphs (v)(6)(i) through (iv) of this section.

(i) General duty. The owner or operator must operate the PCP consistent with proper industry and engineering practices, in a manner that is consistent with the environmentally beneficial analysis and air quality analysis required by paragraphs (v)(2)(i) and (ii) of this section, with information submitted in the notice or permit application required by paragraph (v)(3), and in such a way as to minimize, within the physical configuration and operational standards usually associated

with the emissions control device or strategy, emissions of collateral pollutants.

(ii) Recordkeeping. The owner or operator must maintain copies on site of the environmentally beneficial analysis, the air quality impacts analysis, and monitoring and other emission records to prove that the PCP operated consistent with the general duty requirements in paragraph (v)(6)(i) of

this section.

(iii) Permit requirements. The owner or operator must comply with any provisions in the plan-approved permit or title V permit related to use and approval of the PCP exclusion.

(iv) Generation of Emission Reduction

Credits. Emission reductions created by

a PCP shall not be included in calculating a significant net emissions

increase unless the emissions unit

further reduces emissions after qualifying for the PCP exclusion ( e.g.

, taking an operational restriction on the hours of operation.) The owner or operator may generate a credit for the

difference between the level of reduction which was used to qualify for

the PCP exclusion and the new emission

limitation if such reductions are surplus, quantifiable, and permanent. For purposes of generating offsets, the reductions must also be federally enforceable. For purposes of determining creditable net emissions
increases and decreases, the reductions must also be enforceable as a practical

matter.

(w) Actuals PALs. The plan shall provide for PALs according to the provisions in paragraphs (w)(1) through (15) of this section.

(1) Applicability. (i) The reviewing authority may approve the use of an actuals PAL for any existing major stationary source if


### 80270 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

the PAL meets the requirements in paragraphs (w)(1) through (15) of this

section. The term ‘‘ PAL ’’ shall mean

‘‘ actuals PAL ’’ throughout paragraph (w)

of this section.

(ii) Any physical change in or change in the method of operation of a major stationary source that maintains its total

source-wide emissions below the PAL level, meets the requirements in paragraphs (w)(1) through (15) of this section, and complies with the PAL permit:

( a ) Is not a major modification for the PAL pollutant;

( b ) Does not have to be approved through the plan ’ s major NSR program;

and

( c) Is not subject to the provisions in paragraph (r)(2) of this section (restrictions on relaxing enforceable emission limitations that the major stationary source used to avoid applicability of the major NSR program).

(iii) Except as provided under paragraph (w)(1)(ii)(c) of this section, a major stationary source shall continue to comply with all applicable Federal or State requirements, emission limitations, and work practice requirements that were established prior

to the effective date of the PAL.

(2) Definitions. The plan shall use the definitions in paragraphs (w)(2)(i) through (xi) of this section for the purpose of developing and implementing regulations that authorize

the use of actuals PALs consistent with paragraphs (w)(1) through (15) of this

section. When a term is not defined in these paragraphs, it shall have the meaning given in paragraph (b) of this

section or in the Act.

(i) Actuals PAL for a major stationary

source means a PAL based on the baseline actual emissions (as defined in paragraph (b)(47) of this section) of all emissions units (as defined in paragraph (b)(7) of this section) at the source, that emit or have the potential to emit the PAL pollutant.

(ii) Allowable emissions means

‘‘ allowable emissions ’’ as defined in paragraph (b)(16) of this section, except as this definition is modified according to paragraphs (w)(2)(ii)( a ) and ( b) of this

section.

( a ) The allowable emissions for any

emissions unit shall be calculated considering any emission limitations that are enforceable as a practical matter

on the emissions unit ’ s potential to

emit.

( b ) An emissions unit ’ s potential to emit shall be determined using the definition in paragraph (b)(4) of this section, except that the words ‘‘ or enforceable as a practical matter ’’ should be added after ‘‘ federally

enforceable. ’’

(iii) Small emissions unit means an emissions unit that emits or has the potential to emit the PAL pollutant in an amount less than the significant level for that PAL pollutant, as defined in paragraph (b)(23) of this section or in
the Act, whichever is lower.

(iv) Major emissions unit means: ( a ) Any emissions unit that emits or has the potential to emit 100 tons per year or more of the PAL pollutant in an

attainment area; or

( b) Any emissions unit that emits or has the potential to emit the PAL pollutant in an amount that is equal to or greater than the major source threshold for the PAL pollutant as defined by the Act for nonattainment areas. For example, in accordance with the definition of major stationary source in section 182(c) of the Act, an emissions unit would be a major

emissions unit for VOC if the emissions

unit is located in a serious ozone

nonattainment area and it emits or has the potential to emit 50 or more tons of VOC per year.

(v) Plantwide applicability limitation (PAL) means an emission limitation expressed in tons per year, for a pollutant at a major stationary source, that is enforceable as a practical matter

and established source-wide in accordance with paragraphs (w)(1) through (15) of this section.

(vi) PAL effective date generally

means the date of issuance of the PAL permit. However, the PAL effective date for an increased PAL is the date any emissions unit that is part of the PAL major modification becomes operational and begins to emit the PAL pollutant.

(vii) PAL effective period means the period beginning with the PAL effective date and ending 10 years later.

(viii) PAL major modification means, notwithstanding paragraphs (b)(2) and (b)(3) of this section (the definitions for major modification and net emissions increase), any physical change in or change in the method of operation of the

PAL source that causes it to emit the PAL pollutant at a level equal to or greater than the PAL.

(ix) PAL permit means the major NSR permit, the minor NSR permit, or the State operating permit under a program that is approved into the plan, or the title V permit issued by the reviewing authority that establishes a PAL for a major stationary source.

(x) PAL pollutant means the pollutant

for which a PAL is established at a major stationary source.

(xi) Significant emissions unit means an emissions unit that emits or has the potential to emit a PAL pollutant in an amount that is equal to or greater than the significant level (as defined in paragraph (b)(23) of this section or in the Act, whichever is lower) for that PAL pollutant, but less than the amount that would qualify the unit as a major emissions unit as defined in paragraph (w)(2)(iv) of this section.

(3) Permit application requirements. As part of a permit application requesting a PAL, the owner or operator of a major stationary source shall submit the following information in paragraphs (w)(3)(i) through (iii) of this section to the reviewing authority for approval.

(i) A list of all emissions units at the source designated as small, significant or major based on their potential to emit. In addition, the owner or operator
of the source shall indicate which, if any, Federal or State applicable requirements, emission limitations, or work practices apply to each unit.

(ii) Calculations of the baseline actual emissions (with supporting documentation). Baseline actual

emissions are to include emissions associated not only with operation of
the unit, but also emissions associated with startup, shutdown, and

malfunction.

(iii) The calculation procedures that the major stationary source owner or operator proposes to use to convert the monitoring system data to monthly

emissions and annual emissions based on a 12-month rolling total for each month as required by paragraph (w)(13)(i) of this section.

(4) General requirements for establishing PALs.

(i) The plan allows the reviewing authority to establish a PAL at a major stationary source, provided that at a minimum, the requirements in paragraphs (w)(4)(i)(a) through (g) of

this section are met.

( a ) The PAL shall impose an annual emission limitation in tons per year, that is enforceable as a practical matter, for the entire major stationary source. For each month during the PAL effective period after the first 12 months of establishing a PAL, the major stationary source owner or operator shall show that the sum of the monthly

emissions from each emissions unit under the PAL for the previous 12

consecutive months is less than the PAL (a 12-month average, rolled monthly). For each month during the first 11
months from the PAL effective date, the major stationary source owner or operator shall show that the sum of the preceding monthly emissions from the

PAL effective date for each emissions

unit under the PAL is less than the PAL.

( b ) The PAL shall be established in a PAL permit that meets the public


### 80271 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

participation requirements in paragraph (w)(5) of this section.

( c) The PAL permit shall contain all the requirements of paragraph (w)(7) of

this section.

( d) The PAL shall include fugitive emissions, to the extent quantifiable,

from all emissions units that emit or have the potential to emit the PAL pollutant at the major stationary source.

( e) Each PAL shall regulate emissions of only one pollutant.

( f

) Each PAL shall have a PAL effective period of 10 years.

(g

) The owner or operator of the major stationary source with a PAL shall comply with the monitoring, recordkeeping, and reporting requirements provided in paragraphs (w)(12) through (14) of this section for

each emissions unit under the PAL through the PAL effective period.

(ii) At no time (during or after the PAL effective period) are emissions reductions of a PAL pollutant that occur during the PAL effective period creditable as decreases for purposes of

offsets under § 51.165(a)(3)(ii) of this chapter unless the level of the PAL is reduced by the amount of such

emissions reductions and such

reductions would be creditable in the

absence of the PAL.

(5) Public participation requirements for PALs. PALs for existing major stationary sources shall be established, renewed, or increased, through a procedure that is consistent with
§§ 51.160 and 51.161 of this chapter. This includes the requirement that the reviewing authority provide the public with notice of the proposed approval of a PAL permit and at least a 30-day period for submittal of public comment. The reviewing authority must address all material comments before taking final action on the permit.

(6) Setting the 10-year actuals PAL

level. The plan shall provide that the actuals PAL level for a major stationary

source shall be established as the sum of the baseline actual emissions (as defined in paragraph (b)(47) of this section) of the PAL pollutant for each emissions unit at the source; plus an amount equal to the applicable significant level for the PAL pollutant under paragraph (b)(23) of this section
or under the Act, whichever is lower. When establishing the actuals PAL level, for a PAL pollutant, only one consecutive 24-month period must be

used to determine the baseline actual emissions for all existing emissions
units. However, a different consecutive 24-month period may be used for each different PAL pollutant. Emissions

associated with units that were permanently shutdown after this 24- month period must be subtracted from

the PAL level. Emissions from units on which actual construction began after the 24-month period must be added to the PAL level in an amount equal to the potential to emit of the units. The reviewing authority shall specify a reduced PAL level(s) (in tons/yr) in the PAL permit to become effective on the future compliance date(s) of any applicable Federal or State regulatory requirement(s) that the reviewing authority is aware of prior to issuance of the PAL permit. For instance, if the source owner or operator will be required to reduce emissions from

industrial boilers in half from baseline emissions of 60 ppm NO X to a new rule limit of 30 ppm, then the permit shall

contain a future effective PAL level that is equal to the current PAL level reduced by half of the original baseline emissions of such unit(s).

(7) Contents of the PAL permit. The plan shall require that the PAL permit
contain, at a minimum, the information in paragraphs (w)(7)(i) through (x) of

this section.

(i) The PAL pollutant and the applicable source-wide emission limitation in tons per year.

(ii) The PAL permit effective date and the expiration date of the PAL (PAL effective period).

(iii) Specification in the PAL permit that if a major stationary source owner or operator applies to renew a PAL in accordance with paragraph (w)(10) of

this section before the end of the PAL effective period, then the PAL shall not expire at the end of the PAL effective period. It shall remain in effect until a revised PAL permit is issued by the reviewing authority.

(iv) A requirement that emission calculations for compliance purposes include emissions from startups,

shutdowns and malfunctions.

(v) A requirement that, once the PAL expires, the major stationary source is subject to the requirements of paragraph (w)(9) of this section.

(vi) The calculation procedures that the major stationary source owner or operator shall use to convert the monitoring system data to monthly

emissions and annual emissions based on a 12-month rolling total for each month as required by paragraph (w)(3)(i)

of this section.

(vii) A requirement that the major stationary source owner or operator

monitor all emissions units in accordance with the provisions under paragraph (w)(13) of this section.

(viii) A requirement to retain the records required under paragraph (w)(13) of this section on site. Such records may be retained in an electronic

format.

(ix) A requirement to submit the reports required under paragraph (w)(14) of this section by the required

deadlines.

(x) Any other requirements that the reviewing authority deems necessary to implement and enforce the PAL.

(8) PAL effective period and reopening of the PAL permit. The plan shall require the information in paragraphs (w)(8)(i) and (ii) of this

section.

(i) PAL effective period. The reviewing authority shall specify a PAL effective period of 10 years.

(ii) Reopening of the PAL permit. ( a ) During the PAL effective period, the plan shall require the reviewing authority to reopen the PAL permit to:

( 1 ) Correct typographical/calculation errors made in setting the PAL or reflect

a more accurate determination of
emissions used to establish the PAL;

( 2 ) Reduce the PAL if the owner or operator of the major stationary source

creates creditable emissions reductions

for use as offsets under § 51.165(a)(3)(ii) of this chapter; and

( 3 ) Revise the PAL to reflect an increase in the PAL as provided under paragraph (w)(11) of this section.

( b ) The plan shall provide the reviewing authority discretion to reopen the PAL permit for the following:

( 1 ) Reduce the PAL to reflect newly applicable Federal requirements (for example, NSPS) with compliance dates
after the PAL effective date;

( 2 ) Reduce the PAL consistent with any other requirement, that is enforceable as a practical matter, and that the State may impose on the major stationary source under the plan; and

( 3 ) Reduce the PAL if the reviewing authority determines that a reduction is necessary to avoid causing or contributing to a NAAQS or PSD
increment violation, or to an adverse impact on an AQRV that has been identified for a Federal Class I area by a Federal Land Manager and for which information is available to the general public.

( c) Except for the permit reopening in paragraph (w)(8)(ii)( a )( 1 ) of this section for the correction of typographical/

calculation errors that do not increase the PAL level, all reopenings shall be

carried out in accordance with the public participation requirements of paragraph (w)(5) of this section.

(9) Expiration of a PAL. Any PAL that

is not renewed in accordance with the procedures in paragraph (w)(10) of this section shall expire at the end of the PAL effective period, and the


### 80272 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

requirements in paragraphs (w)(9)(i) through (v) of this section shall apply.

(i) Each emissions unit (or each group of emissions units) that existed under the PAL shall comply with an allowable

emission limitation under a revised permit established according to the procedures in paragraphs (w)(9)(i)( a ) and ( b ) of this section.

( a ) Within the time frame specified for PAL renewals in paragraph (w)(10)(ii) of this section, the major stationary source shall submit a proposed allowable

emission limitation for each emissions unit (or each group of emissions units,

if such a distribution is more appropriate as decided by the reviewing authority) by distributing the PAL allowable emissions for the major stationary source among each of the

emissions units that existed under the PAL. If the PAL had not yet been adjusted for an applicable requirement that became effective during the PAL effective period, as required under paragraph (w)(10)(v) of this section,

such distribution shall be made as if the PAL had been adjusted.

( b ) The reviewing authority shall

decide whether and how the PAL

allowable emissions will be distributed and issue a revised permit incorporating
allowable limits for each emissions unit, or each group of emissions units, as the reviewing authority determines is appropriate.

(ii) Each emissions unit(s) shall comply with the allowable emission limitation on a 12-month rolling basis. The reviewing authority may approve the use of monitoring systems (source testing,emission factors, etc.) other than

CEMS, CERMS, PEMS or CPMS to demonstrate compliance with the

allowable emission limitation.

(iii) Until the reviewing authority issues the revised permit incorporating
allowable limits for each emissions unit, or each group of emissions units, as required under paragraph (w)(9)(i)( b) of
this section, the source shall continue to comply with a source-wide, multi-unit emissions cap equivalent to the level of

the PAL emission limitation.

(iv) Any physical change or change in the method of operation at the major stationary source will be subject to major NSR requirements if such change meets the definition of major modification in paragraph (b)(2) of this

section.

(v) The major stationary source owner or operator shall continue to comply with any State or Federal applicable requirements (BACT, RACT, NSPS, etc.) that may have applied either during the PAL effective period or prior to the PAL effective period except for those

emission limitations that had been established pursuant to paragraph (r)(2) of this section, but were eliminated by

the PAL in accordance with the provisions in paragraph (w)(1)(ii)(c) of

this section.

(10) Renewal of a PAL. (i) The reviewing authority shall follow the procedures specified in paragraph (w)(5) of this section in approving any request to renew a PAL for a major stationary source, and shall provide both the proposed PAL level and a written rationale for the proposed PAL level to the public for review and comment. During such public review, any person may propose a PAL level for the source for consideration by the reviewing authority.

(ii) Application deadline. The plan shall require that a major stationary source owner or operator shall submit a timely application to the reviewing authority to request renewal of a PAL. A timely application is one that is submitted at least 6 months prior to, but
not earlier than 18 months from, the date of permit expiration. This deadline for application submittal is to ensure that the permit will not expire before the permit is renewed. If the owner or operator of a major stationary source submits a complete application to renew the PAL within this time period, then

the PAL shall continue to be effective until the revised permit with the

renewed PAL is issued.

(iii) Application requirements. The application to renew a PAL permit shall contain the information required in paragraphs (w)(10)(iii) ( a ) through ( d) of

this section.

( a ) The information required in paragraphs (w)(3)(i) through (iii) of this

section.

( b) A proposed PAL level. ( c) The sum of the potential to emit

of all emissions units under the PAL (with supporting documentation).

( d) Any other information the owner or operator wishes the reviewing authority to consider in determining the appropriate level for renewing the PAL.

(iv) PAL adjustment. In determining whether and how to adjust the PAL, the reviewing authority shall consider the options outlined in paragraphs (w)(10)(iv) ( a ) and ( b ) of this section. However, in no case may any such adjustment fail to comply with paragraph (w)(10)(iv)( c) of this section.

( a ) If the emissions level calculated in accordance with paragraph (w)(6) of this section is equal to or greater than 80 percent of the PAL level, the reviewing authority may renew the PAL at the same level without considering the factors set forth in paragraph (w)(10)(iv)( b ) of this section; or ( b ) The reviewing authority may set

the PAL at a level that it determines to be more representative of the source ’ s baseline actual emissions, or that it determines to be appropriate considering air quality needs, advances in control technology, anticipated economic growth in the area, desire to reward or encourage the source ’ s voluntary emissions reductions, or other factors as specifically identified by the reviewing authority in its written

rationale.

( c) Notwithstanding paragraphs (w)(10)(iv) ( a ) and ( b ) of this section:

( 1 ) If the potential to emit of the major stationary source is less than the PAL, the reviewing authority shall adjust the PAL to a level no greater than the potential to emit of the source; and

( 2 ) The reviewing authority shall not approve a renewed PAL level higher than the current PAL, unless the major stationary source has complied with the provisions of paragraph (w)(11) of this section (increasing a PAL).

(v) If the compliance date for a State or Federal requirement that applies to the PAL source occurs during the PAL effective period, and if the reviewing authority has not already adjusted for such requirement, the PAL shall be adjusted at the time of PAL permit renewal or title V permit renewal,

whichever occurs first.

(11) Increasing a PAL during the PAL effective period.

(i) The plan shall require that the reviewing authority may increase a PAL emission limitation only if the major stationary source complies with the provisions in paragraphs (w)(11)(i) ( a ) through ( d) of this section.

( a ) The owner or operator of the major stationary source shall submit a complete application to request an

increase in the PAL limit for a PAL major modification. Such application shall identify the emissions unit(s) contributing to the increase in emissions so as to cause the major stationary

source ’ s emissions to equal or exceed its

PAL.

( b ) As part of this application, the major stationary source owner or operator shall demonstrate that the sum

of the baseline actual emissions of the small emissions units, plus the sum of

the baseline actual emissions of the significant and major emissions units assuming application of BACT equivalent controls, plus the sum of the

allowable emissions of the new or modified emissions unit(s), exceeds the

PAL. The level of control that would result from BACT equivalent controls on each significant or major emissions unit shall be determined by conducting a new BACT analysis at the time the


### 80273 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

application is submitted, unless the emissions unit is currently required to comply with a BACT or LAER requirement that was established within the preceding 10 years. In such a case,

the assumed control level for that emissions unit shall be equal to the

level of BACT or LAER with which that emissions unit must currently comply.

( c) The owner or operator obtains a major NSR permit for all emissions unit(s) identified in paragraph (w)(11)(i)( a ) of this section, regardless of the magnitude of the emissions increase resulting from them (that is, no significant levels apply). These emissions unit(s) shall comply with any emissions requirements resulting from the major NSR process (for example, BACT), even though they have also become subject to the PAL or continue to be subject to the PAL.

( d) The PAL permit shall require that

the increased PAL level shall be effective on the day any emissions unit that is part of the PAL major modification becomes operational and begins to emit the PAL pollutant.

(ii) The reviewing authority shall

calculate the new PAL as the sum of the

allowable emissions for each modified or new emissions unit, plus the sum of

the baseline actual emissions of the significant and major emissions units (assuming application of BACT equivalent controls as determined in accordance with paragraph (w)(11)(i)( b) of this section), plus the sum of the

baseline actual emissions of the small

emissions units.

(iii) The PAL permit shall be revised

to reflect the increased PAL level pursuant to the public notice requirements of paragraph (w)(5) of this

section.

(12) Monitoring requirements for

PALs.

(i) General requirements. ( a ) Each PAL permit must contain enforceable requirements for the monitoring system that accurately determines plantwide emissions of the PAL pollutant in terms of mass per unit of time. Any monitoring system authorized for use in the PAL permit

must be based on sound science and meet generally acceptable scientific procedures for data quality and manipulation. Additionally, the information generated by such system must meet minimum legal requirements for admissibility in a judicial proceeding to enforce the PAL permit.

( b) The PAL monitoring system must employ one or more of the four general monitoring approaches meeting the minimum requirements set forth in paragraphs (w)(12)(ii) ( a ) through ( d) of this section and must be approved by the reviewing authority.

( c) Notwithstanding paragraph (w)(12)(i)( b ) of this section, you may also employ an alternative monitoring approach that meets paragraph (w)(12)(i)( a ) of this section if approved by the reviewing authority.

( d) Failure to use a monitoring system that meets the requirements of this

section renders the PAL invalid.

(ii) Minimum performance requirements for approved monitoring approaches. The following are acceptable general monitoring approaches when conducted in

accordance with the minimum requirements in paragraphs (w)(12)(iii) through (ix) of this section:

( a ) Mass balance calculations for activities using coatings or solvents;

( b) CEMS; ( c) CPMS or PEMS; and ( d) Emission factors. (iii) Mass balance calculations. An owner or operator using mass balance calculations to monitor PAL pollutant emissions from activities using coating or solvents shall meet the following requirements:

( a ) Provide a demonstrated means of validating the published content of the PAL pollutant that is contained in or created by all materials used in or at the

emissions unit;

( b) Assume that the emissions unit emits all of the PAL pollutant that is contained in or created by any raw

material or fuel used in or at the
emissions unit, if it cannot otherwise be accounted for in the process; and

( c) Where the vendor of a material or
fuel, which is used in or at the emissions unit, publishes a range of pollutant content from such material, the owner or operator must use the highest value of the range to calculate the PAL pollutant emissions unless the reviewing authority determines there is site-specific data or a site-specific monitoring program to support another content within the range.

(iv) CEMS. An owner or operator using CEMS to monitor PAL pollutant emissions shall meet the following requirements:

( a ) CEMS must comply with applicable Performance Specifications found in 40 CFR part 60, appendix B;

and

( b) CEMS must sample, analyze, and record data at least every 15 minutes while the emissions unit is operating.

(v) CPMS or PEMS. An owner or operator using CPMS or PEMS to monitor PAL pollutant emissions shall meet the following requirements:

( a ) The CPMS or the PEMS must be based on current site-specific data demonstrating a correlation between the monitored parameter(s) and the PAL pollutant emissions across the range of operation of the emissions unit; and

( b ) Each CPMS or PEMS must sample, analyze, and record data at least every 15 minutes, or at another less frequent interval approved by the reviewing authority, while the emissions unit is operating.

(vi) Emission factors. An owner or operator using emission factors to monitor PAL pollutant emissions shall meet the following requirements:

( a ) All emission factors shall be adjusted, if appropriate, to account for the degree of uncertainty or limitations

in the factors ’ development;

( b ) The emissions unit shall operate within the designated range of use for the emission factor, if applicable; and

( c) If technically practicable, the owner or operator of a significant

emissions unit that relies on an

emission factor to calculate PAL pollutant emissions shall conductvalidation testing to determine a sitespecific emission factor within 6 months of PAL permit issuance, unless the reviewing authority determines that testing is not required.

(vii) A source owner or operator must record and report maximum potential emissions without considering

enforceable emission limitations or operational restrictions for an emissions unit during any period of time that there is no monitoring data, unless another method for determining emissions during such periods is specified in the PAL permit.

(viii) Notwithstanding the requirements in paragraphs (w)(12)(iii) through (vii) of this section, where an owner or operator of an emissions unit

cannot demonstrate a correlation between the monitored parameter(s) and the PAL pollutant emissions rate at all operating points of the emissions unit, the reviewing authority shall, at the time of permit issuance:

( a ) Establish default value(s) for determining compliance with the PAL based on the highest potential emissions reasonably estimated at such operating point(s); or

( b ) Determine that operation of the emissions unit during operating

conditions when there is no correlation between monitored parameter(s) and the PAL pollutant emissions is a violation

of the PAL.

(ix) Re-validation. All data used toestablish the PAL pollutant must be revalidated through performance testing or other scientifically valid means approved by the reviewing authority. Such testing must occur at least once every 5 years after issuance of the PAL.


### 80274 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

(13) Recordkeeping requirements. (i) The PAL permit shall require an owner or operator to retain a copy of all records necessary to determine compliance with any requirement of paragraph (w) of this section and of the PAL, including a determination of each

emissions unit ’ s 12-month rolling total emissions, for 5 years from the date of

such record.

(ii) The PAL permit shall require an owner or operator to retain a copy of the following records, for the duration of the PAL effective period plus 5 years:

( a ) A copy of the PAL permit application and any applications for
revisions to the PAL; and

( b) Each annual certification of compliance pursuant to title V and the data relied on in certifying the compliance.

(14) Reporting and notification requirements. The owner or operator shall submit semi-annual monitoring reports and prompt deviation reports to the reviewing authority in accordance with the applicable title V operating permit program. The reports shall meet the requirements in paragraphs (w)(14)(i) through (iii) of this section.

(i) Semi-annual report. The semiannual report shall be submitted to the reviewing authority within 30 days of the end of each reporting period. This report shall contain the information required in paragraphs (w)(14)(i)( a ) through (g ) of this section. ( a ) The identification of owner and operator and the permit number.

( b) Total annual emissions (tons/year) based on a 12-month rolling total for each month in the reporting period recorded pursuant to paragraph (w)(13)(i) of this section.

( c) All data relied upon, including, but not limited to, any Quality Assurance or Quality Control data, in calculating the monthly and annual PAL pollutant emissions.

( d) A list of any emissions units modified or added to the major stationary source during the preceding 6-month period.

( e) The number, duration, and cause of any deviations or monitoring malfunctions (other than the time associated with zero and span calibration checks), and any corrective

action taken.

( f

) A notification of a shutdown of any monitoring system, whether the shutdown was permanent or temporary,
the reason for the shutdown, the anticipated date that the monitoring system will be fully operational or replaced with another monitoring system, and whether the emissions unit monitored by the monitoring system continued to operate, and the calculation of the emissions of the pollutant or the number determined by method included in the permit, as provided by paragraph (w)(12)(vii) of

this section.

(g

) A signed statement by the responsible official (as defined by the applicable title V operating permit program) certifying the truth, accuracy, and completeness of the information provided in the report.

(ii) Deviation report. The major stationary source owner or operator shall promptly submit reports of any

deviations or exceedance of the PAL requirements, including periods where no monitoring is available. A report submitted pursuant to § 70.6(a)(3)(iii)(B) of this chapter shall satisfy this reporting requirement. The deviation reports shall be submitted within the time limits prescribed by the applicable program implementing
§ 70.6(a)(3)(iii)(B) of this chapter. The reports shall contain the following

information:

( a ) The identification of owner and operator and the permit number;

( b) The PAL requirement that experienced the deviation or that was
exceeded;

( c) Emissions resulting from the
deviation or the exceedance; and

( d) A signed statement by the responsible official (as defined by the applicable title V operating permit program) certifying the truth, accuracy, and completeness of the information provided in the report.

(iii) Re-validation results. The owner or operator shall submit to the reviewing authority the results of any

re-validation test or method within three months after completion of such

test or method.

(15) Transition requirements. (i) No reviewing authority may issue a PAL that does not comply with the requirements in paragraphs (w)(1) through (15) of this section after the Administrator has approved regulations incorporating these requirements into a plan.

(ii) The reviewing authority may supersede any PAL which was established prior to the date of approval of the plan by the Administrator with a PAL that complies with the requirements of paragraphs (w)(1) through (15) of this section.

(x) If any provision of this section, or the application of such provision to any person or circumstance, is held invalid,
the remainder of this section, or the application of such provision to persons

or circumstances other than those as to
which it is held invalid, shall not be affected thereby. PART 52

— [AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401, et seq.

Subpart A

— [Amended]

2. In 40 CFR 52.21(b)(1)(i)( b) and (b)(5), remove the words ‘‘ any air pollutant subject to regulation under the

Act, ’’ and add, in their place, the words

‘‘ a regulated NSR pollutant. ’’

3. In addition to the amendments set
forth above, section 52.21 is amended:

a. By redesignating paragraph (a) as paragraph (a)(1).

b. By adding paragraph (a)(2). c. By revising paragraphs (b)(2)(i) and (ii).

d. By revising paragraph (b)(2)(iii)(h ). e. By adding paragraph (b)(2)(iv). f. By revising paragraph (b)(3)(i). g. By revising paragraphs (b)(3)(iii) and (iv).

h. By revising paragraphs (b)(3)(vi)( b ) and ( c).

i. By adding paragraph (b)(3)(vi)( d). j. By adding paragraph (b)(3)(ix). k. By revising paragraphs (b)(7) and (8).

l. By revising paragraph (b)(13). m. By revising paragraph (b)(21). n. By removing the following items from the list in paragraph (b)(23)(i):

‘‘ Asbestos: 0.007 tpy ’’ ; ‘‘ Beryllium:

0.0004 tpy ’’ ; ‘‘ Mercury: 0.1 tpy ’’ ; and

‘‘ Vinyl Chloride: 1 tpy ’’

.

o. By revising paragraph (b)(32). p. By removing and reserving paragraph (b)(33).

q. By adding paragraphs (b)(39) through (48), adding and reserving paragraph (b)(49), and by adding paragraphs (b)(50) through (b)(54).

r. By revising the introductory text of paragraph (i).

s. By removing paragraphs (i)(1) through (3).

t. By redesignating paragraphs (i)(4) through (13) as paragraphs (i)(1) through (10).

u. By removing the following items from the list in newly redesignated paragraph (i)(5)(i): ‘‘ Mercury

—0.25 μg/

m 3 , 24-hour average ’’ ; ‘‘ Beryllium

— 0.001 μg/m 3 , 24-hour average ’’ ; ‘‘ Vinyl

chloride

— 15 μg/m 3 , 24-hour average ’’

.

v. By adding and reserving paragraphs (r)(5) and adding paragraphs (r)(6) through (7).

w. By adding paragraphs (x) through (bb).

4. In addition to the amendments set
forth above, in 40 CFR 52.21, remove

the words ‘‘ pollutant subject to regulation under the Act ’’ and add, in their place, the words ‘‘ regulated NSR pollutant ’’ in the following places:


### 80275 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

a. (b)(1)(i)( a ); b. (b)(2)(i); c. (b)(23)(ii); d. newly redesignated (i)(4); and e. (j)(2) and (3).

The revisions and additions read as

follows:

§ 52.21 Prevention of significant deterioration of air quality.

(a)(1) Plan disapproval. * * * (2) Applicability procedures. (i) The requirements of this section apply to the construction of any new major stationary source (as defined in paragraph (b)(1) of this section) or any project at an existing major stationary source in an area designated as

attainment or unclassifiable under sections 107(d)(1)(A)(ii) or (iii) of the

Act.

(ii) The requirements of paragraphs (j) through (r) of this section apply to the construction of any new major stationary source or the major modification of any existing major stationary source, except as this section otherwise provides.

(iii) No new major stationary source or major modification to which the requirements of paragraphs (j) through (r)(5) of this section apply shall begin actual construction without a permit that states that the major stationary source or major modification will meet those requirements. The Administrator has authority to issue any such permit.

(iv) The requirements of the program will be applied in accordance with the principles set out in paragraphs (a)(2)(iv)( a ) through ( f

) of this section. ( a ) Except as otherwise provided in paragraphs (a)(2)(v) and (vi) of this
section, and consistent with the definition of major modification contained in paragraph (b)(2) of this section, a project is a major modification for a regulated NSR pollutant if it causes two types of emissions increases

—a significant emissions increase (as defined in paragraph (b)(40) of this section), and a significant net emissions increase (as defined in paragraphs (b)(3) and (b)(23) of this section). The project is not a major modification if it does not cause a significant emissions increase. If the project causes a significant emissions increase, then the project is a major modification only if it also results in a significant net emissions increase.

( b ) The procedure for calculating (before beginning actual construction) whether a significant emissions increase ( i.e. , the first step of the process) will occur depends upon the type of emissions units being modified, according to paragraphs (a)(2)(iv)( c) through ( f

) of this section. The procedure for calculating (before beginning actual construction) whether a significant net emissions increase will occur at the major stationary source ( i.e.

, the second step of the process) is contained in the definition in paragraph (b)(3) of this section. Regardless of any such preconstruction projections, a major modification results if the project causes a significant emissions increase and a significant net emissions increase.

( c) Actual-to-projected-actual applicability test for projects that only involve existing emissions units. A significant emissions increase of a regulated NSR pollutant is projected to

occur if the sum of the difference between the projected actual emissions (as defined in paragraph (b)(41) of this section) and the baseline actual emissions (as defined in paragraphs (b)(48)(i) and (ii) of this section), for each existing emissions unit, equals or exceeds the significant amount for that pollutant (as defined in paragraph (b)(23) of this section).

( d) Actual-to-potential test for projects that only involve construction of a new emissions unit(s). A significant emissions increase of a regulated NSR pollutant is projected to occur if the

sum of the difference between the potential to emit (as defined in paragraph (b)(4) of this section) from each new emissions unit following completion of the project and the baseline actual emissions (as defined in paragraph (b)(48)(iii) of this section) of these units before the project equals or exceeds the significant amount for that pollutant (as defined in paragraph (b)(23) of this section).

( e) Emission test for projects that

involve Clean Units. For a project that will be constructed and operated at a Clean Unit without causing the

emissions unit to lose its Clean Unit designation, no emissions increase is

deemed to occur.

( f

) Hybrid test for projects that involve multiple types of emissions units. A significant emissions increase of a regulated NSR pollutant is projected to

occur if the sum of the emissions increases for each emissions unit, using the method specified in paragraphs (a)(2)(iv)( c) through ( e) of this section as applicable with respect to each emissions unit, for each type of emissions unit equals or exceeds the significant amount for that pollutant (as defined in paragraph (b)(23) of this section). For example, if a project involves both an existing emissions unit and a Clean Unit, the projected increase is determined by summing the values determined using the method specified in paragraph (a)(2)(iv)( c) of this section for the existing unit and using the method specified in paragraph (a)(2)(iv)( e) of this section for the Clean

Unit.

(v) For any major stationary source for a PAL for a regulated NSR pollutant, the major stationary source shall comply with the requirements under paragraph (aa) of this section.

(vi) An owner or operator undertaking a PCP (as defined in paragraph (b)(32) of this section) shall comply with the requirements under paragraph (z) of this

section.

* * * * *

(b) * * * (2)(i) Major modification means any physical change in or change in the method of operation of a major stationary source that would result in: a significant emissions increase (as defined in paragraph (b)(40) of this section) of a regulated NSR pollutant (as defined in paragraph (b)(50) of this section); and a significant net emissions increase of that pollutant from the major stationary source.

(ii) Any significant emissions increase (as defined in paragraph (b)(40) of this section) from any emissions units or net emissions increase (as defined in paragraph (b)(3) of this section) at a major stationary source that is significant for volatile organic compounds shall be considered significant for ozone.

(iii) * * * (h ) The addition, replacement, or use of a PCP, as defined in paragraph (b)(32) of this section, at an existing emissions unit meeting the requirements of paragraph (z) of this section. A replacement control technology must provide more effective emission control than that of the replaced control technology to qualify for this exclusion.

* * * * *

(iv) This definition shall not apply with respect to a particular regulated NSR pollutant when the major stationary source is complying with the requirements under paragraph (aa) of this section for a PAL for that pollutant. Instead, the definition at paragraph (aa)(2)(viii) of this section shall apply.

(3)(i) Net emissions increase means, with respect to any regulated NSR pollutant emitted by a major stationary source, the amount by which the sum of the following exceeds zero:

( a ) The increase in emissions from a particular physical change or change in the method of operation at a stationary source as calculated pursuant to paragraph (a)(2)(iv) of this section; and

( b ) Any other increases and decreases in actual emissions at the major stationary source that are contemporaneous with the particular change and are otherwise creditable.


### 80276 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

Baseline actual emissions for calculating

increases and decreases under this paragraph (b)(3)(i)( b ) shall be determined as provided in paragraph (b)(48) of this section, except that paragraphs (b)(48)(i)( c) and (b)(48)(ii)( d) of this section shall not apply.

* * * * *

(iii) An increase or decrease in actual emissions is creditable only if:

( a ) The Administrator or other reviewing authority has not relied on it in issuing a permit for the source under this section, which permit is in effect

when the increase in actual emissions from the particular change occurs; and

( b) The increase or decrease in

emissions did not occur at a Clean Unit except as provided in paragraphs (x)(8) and (y)(10) of this section.

(iv) An increase or decrease in actual emissions of sulfur dioxide, particulate matter, or nitrogen oxides that occurs before the applicable minor source baseline date is creditable only if it is required to be considered in calculating

the amount of maximum allowable increases remaining available.

* * * * *

(vi) * * *

( b) It is enforceable as a practical

matter at and after the time that actual construction on the particular change begins.

( c) It has approximately the same qualitative significance for public health

and welfare as that attributed to the increase from the particular change; and

( d) The decrease in actual emissions

did not result from the installation of add-on control technology or application of pollution prevention practices that were relied on in designating an emissions unit as a Clean Unit under paragraph (y) of this section or under regulations approved pursuant

to § 51.165(d) or to § 51.166(u) of this chapter. That is, once an emissions unit has been designated as a Clean Unit, the owner or operator cannot later use the

emissions reduction from the air pollution control measures that the designation is based on in calculating

the net emissions increase for another emissions unit ( i.e. , must not use that

reduction in a ‘‘ netting analysis ’’ for another emissions unit). However, any

new emission reductions that were not relied upon in a PCP excluded pursuant to paragraph (z) of this section or for a Clean Unit designation are creditable to the extent they meet the requirements in paragraph (z)(6)(iv) of this section for the PCP and paragraphs (x)(8) or (y)(10)

of this section for a Clean Unit.

* * * * * (ix) Paragraph (b)(21)(ii) of this section shall not apply for determining

creditable increases and decreases.

(7) Emissions unit means any part of a stationary source that emits or would have the potential to emit any regulated NSR pollutant and includes an electric utility steam generating unit as defined in paragraph (b)(31) of this section. For purposes of this section, there are two types of emissions units as described in paragraphs (b)(7)(i) and (ii) of this

section.

(i) A new emissions unit is any emissions unit that is (or will be) newly

constructed and that has existed for less than 2 years from the date such emissions unit first operated.

(ii) An existing emissions unit is any

emissions unit that does not meet the requirements in paragraph (b)(7)(i) of

this section.

(8) Construction means any physical change or change in the method of operation (including fabrication,
erection, installation, demolition, or modification of an emissions unit) that would result in a change in emissions.

* * * * *

(13)(i) Baseline concentration means that ambient concentration level that

exists in the baseline area at the time of the applicable minor source baseline

date. A baseline concentration is determined for each pollutant for which

a minor source baseline date is

established and shall include:

( a ) The actual emissions, as defined in paragraph (b)(21) of this section, representative of sources in existence on the applicable minor source baseline date, except as provided in paragraph (b)(13)(ii) of this section; and

( b) The allowable emissions of major stationary sources that commenced construction before the major source baseline date, but were not in operation by the applicable minor source baseline

date.

(ii) The following will not be included

in the baseline concentration and will affect the applicable maximum allowable increase(s):

( a ) Actual emissions, as defined in paragraph (b)(21) of this section, from any major stationary source on which construction commenced after the major
source baseline date; and

( b) Actual emissions increases and decreases, as defined in paragraph (b)(21) of this section, at any stationary source occurring after the minor source

baseline date.

* * * * *

(21)(i) Actual emissions means the actual rate of emissions of a regulated NSR pollutant from an emissions unit,

as determined in accordance with paragraphs (b)(21)(ii) through (iv) of this section, except that this definition shall not apply for calculating whether a significant emissions increase has occurred, or for establishing a PAL under paragraph (aa) of this section. Instead, paragraphs (b)(41) and (b)(48) of this section shall apply for those

purposes.

(ii) In general, actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a consecutive 24-month period which precedes the particular date and which is representative of normal source operation. The Administrator shall allow the use of a different time period upon a determination that it is more representative of normal source operation. Actual emissions shall be calculated using the unit ’ s actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.

(iii) The Administrator may presume that source-specific allowable emissions for the unit are equivalent to the actual

emissions of the unit.

(iv) For any emissions unit that has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on

that date.

* * * * *

(32) Pollution control project (PCP) means any activity, set of work practices or project (including pollution prevention as defined under paragraph (b)(39) of this section) undertaken at an existing emissions unit that reduces emissions of air pollutants from such unit. Such qualifying activities or projects can include the replacement or upgrade of an existing emissions control technology with a more effective unit. Other changes that may occur at the source are not considered part of the PCP if they are not necessary to reduce emissions through the PCP. Projects listed in paragraphs (b)(32)(i) through (vi) of this section are presumed to be environmentally beneficial pursuant to paragraph (z)(2)(i) of this section. Projects not listed in these paragraphs may qualify for a case-specific PCP exclusion pursuant to the requirements of paragraphs (z)(2) and (z)(5) of this

section.

(i) Conventional or advanced flue gas desulfurization or sorbent injection for

control of SO 2

.

(ii) Electrostatic precipitators, baghouses, high efficiency multiclones, or scrubbers for control of particulate matter or other pollutants.

(iii) Flue gas recirculation, low-NO Xburners or combustors, selective nonVerDate Dec<13>2002 09:09 Dec 30, 2002 Jkt 200001 PO 00000 Frm 00092 Fmt 4701 Sfmt 4700 E:\FR\FM\31DER3.SGM 31DER3

### 80277 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

catalytic reduction, selective catalytic reduction, low emission combustion (for IC engines), and oxidation/absorption catalyst for control of NO X

.

(iv) Regenerative thermal oxidizers, catalytic oxidizers, condensers, thermal incinerators, hydrocarbon combustion
flares, biofiltration, absorbers and adsorbers, and floating roofs for storage vessels for control of volatile organic compounds or hazardous air pollutants. For the purpose of this section,

‘‘ hydrocarbon combustion flare ’’ means either a flare used to comply with an applicable NSPS or MACT standard (including uses of flares during startup, shutdown, or malfunction permitted under such a standard), or a flare that

serves to control emissions of waste streams comprised predominately of hydrocarbons and containing no more than 230 mg/dscm hydrogen sulfide.

(v) Activities or projects undertaken to accommodate switching (or partially switching) to an inherently less polluting fuel, to be limited to the following fuel switches:

( a ) Switching from a heavier grade of fuel oil to a lighter fuel oil, or any grade of oil to 0.05 percent sulfur diesel ( i.e.

, from a higher sulfur content #2 fuel or from #6 fuel, to CA 0.05 percent sulfur #2 diesel);

( b) Switching from coal, oil, or any solid fuel to natural gas, propane, or gasified coal;

( c) Switching from coal to wood, excluding construction or demolition waste, chemical or pesticide treated
wood, and other forms of ‘‘ unclean ’’ wood;

( d) Switching from coal to #2 fuel oil (0.5 percent maximum sulfur content);

and

( e) Switching from high sulfur coal to low sulfur coal (maximum 1.2 percent sulfur content).

(vi) Activities or projects undertaken to accommodate switching from the use of one ozone depleting substance (ODS)

to the use of a substance with a lower or zero ozone depletion potential (ODP,) including changes to equipment needed to accommodate the activity or project, that meet the requirements of paragraphs (b)(32)(vi)( a ) and ( b) of this

section.

( a ) The productive capacity of the equipment is not increased as a result of the activity or project.

( b) The projected usage of the new substance is lower, on an ODP-weighted basis, than the baseline usage of the replaced ODS. To make this determination, follow the procedure in paragraphs (b)(32)(vi)( b)( 1 ) through ( 4 )

of this section. ( 1 ) Determine the ODP of the substances by consulting 40 CFR part 82, subpart A, appendices A and B.

( 2 ) Calculate the replaced ODPweighted amount by multiplying the baseline actual usage (using the annualized average of any 24 consecutive months of usage within the past 10 years) by the ODP of the replaced ODS.

( 3 ) Calculate the projected ODPweighted amount by multiplying the projected actual usage of the new substance by its ODP.

( 4 ) If the value calculated in paragraph (b)(32)(vi)( b )( 2 ) of this section

is more than the value calculated in paragraph (b)(32)(vi)( b)( 3 ) of this section, then the projected use of the
new substance is lower, on an ODPweighted basis, than the baseline usage of the replaced ODS.

(33) [Reserved]

* * * * *

(39) Pollution prevention means any activity that through process changes, product reformulation or redesign, or substitution of less polluting raw
materials, eliminates or reduces the release of air pollutants (including fugitive emissions) and other pollutants to the environment prior to recycling, treatment, or disposal; it does not mean recycling (other than certain ‘‘ in-process recycling ’’ practices), energy recovery, treatment, or disposal.

(40) Significant emissions increase means, for a regulated NSR pollutant, an increase in emissions that is significant (as defined in paragraph (b)(23) of this section) for that pollutant.

(41)(i) Projected actual emissions
means the maximum annual rate, in tons per year, at which an existing emissions unit is projected to emit a regulated NSR pollutant in any one of the 5 years (12-month period) following the date the unit resumes regular operation after the project, or in any one of the 10 years following that date, if the project involves increasing the

emissions unit ’ s design capacity or its potential to emit that regulated NSR pollutant and full utilization of the unit would result in a significant emissions increase or a significant net emissions increase at the major stationary source.

(ii) In determining the projected actual emissions under paragraph (b)(41)(i) of this section (before beginning actual construction), the owner or operator of the major stationary source:

( a ) Shall consider all relevant information, including but not limited to, historical operational data, the

company ’ s own representations, the

company ’ s expected business activity and the company ’ s highest projections of business activity, the company ’ s filings with the State or Federal regulatory authorities, and compliance plans under the approved State Implementation Plan; and

( b ) Shall include fugitive emissions to the extent quantifiable and emissions associated with startups, shutdowns,
and malfunctions; and

( c) Shall exclude, in calculating any

increase in emissions that results from he particular project, that portion of the

unit ’ s emissions following the project that an existing unit could have accommodated during the consecutive 24-month period used to establish the

baseline actual emissions under paragraph (b)(48) of this section and that are also unrelated to the particular project, including any increased utilization due to product demand growth; or

( d) In lieu of using the method set out in paragraphs (a)(41)(ii)(a) through (c) of this section, may elect to use the

emissions unit ’ s potential to emit, in tons per year, as defined under paragraph (b)(4) of this section.

(42) Clean Unit means any emissions unit that has been issued a major NSR permit that requires compliance with BACT or LAER, is complying with such BACT/LAER requirements, and qualifies as a Clean Unit pursuant to paragraph (x) of this section; or any emissions unit that has been designated by the
Administrator as a Clean Unit, based on the criteria in paragraphs (y)(3)(i) through (iv) of this section; or any

emissions unit that has been issued a major NSR permit that requires compliance with BACT or LAER, is complying with such BACT/LAER requirements, and qualifies as a Clean Unit pursuant to regulations approved into the State Implementation Plan in

accordance with § 51.165(c) or
§ 51.166(u) of this chapter; or any emissions unit that has been designated by the reviewing authority as a Clean Unit in accordance with regulations approved into the plan to carry out
§ 51.165(d) or § 51.166(u) of this chapter.

(43) Prevention of Significant Deterioration (PSD) program means the EPA-implemented major source preconstruction permit programs under this section or a major source preconstruction permit program that has been approved by the Administrator and incorporated into the State Implementation Plan pursuant to
§ 51.166 of this chapter to implement the requirements of that section. Any permit issued under such a program is a major NSR permit.


### 80278 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

(44) Continuous emissions monitoring system (CEMS) means all of the equipment that may be required to meet the data acquisition and availability requirements of this section, to sample, condition (if applicable), analyze, and provide a record of emissions on a

continuous basis.

(45) Predictive emissions monitoring system (PEMS) means all of the equipment necessary to monitor process and control device operational parameters (for example, control device secondary voltages and electric currents) and other information (for example, gas flow rate, O 2 or CO 2 concentrations), and calculate and record the mass emissions rate (for example, lb/hr) on a continuous basis.

(46) Continuous parameter monitoring system (CPMS) means all of the equipment necessary to meet the data acquisition and availability requirements of this section, to monitor process and control device operational parameters (for example, control device secondary voltages and electric currents) and other information (for example, gas flow rate, O 2 or CO 2 concentrations), and to record average operational parameter value(s) on a

continuous basis.

(47) Continuous emissions rate monitoring system (CERMS) means the total equipment required for the determination and recording of the pollutant mass emissions rate (in terms of mass per unit of time).

(48) Baseline actual emissions means the rate of emissions, in tons per year, of a regulated NSR pollutant, as

determined in accordance with paragraphs (b)(48)(i) through (iv) of this

section.

(i) For any existing electric utility steam generating unit, baseline actual emissions means the average rate, in tons per year, at which the unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the 5- year period immediately preceding when the owner or operator begins actual construction of the project. The

Administrator shall allow the use of a different time period upon a

determination that it is more representative of normal source operation.

( a ) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and

malfunctions.

( b) The average rate shall be adjusteddownward to exclude any noncompliant emissions that occurred while the source was operating above any emission limitation that was legally enforceable during the consecutive 24- month period.

( c) For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-month period must be used to

determine the baseline actual emissions for the emissions units being changed.

A different consecutive 24-month period can be used For each regulated NSR pollutant.

( d) The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by paragraph (b)(48)(i)( b ) of this section.

(ii) For an existing emissions unit (other than an electric utility steam generating unit), baseline actual emissions means the average rate, in tons per year, at which the emissions unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the 10-year period immediately preceding either the date the owner or operator begins actual construction of the project, or the date a complete permit application is received by the Administrator for a permit required under this section or by the reviewing authority for a permit required by a plan, whichever is earlier, except that the 10-year period shall not include any period earlier than November 15, 1990.

( a ) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and

malfunctions.

( b) The average rate shall be adjusteddownward to exclude any noncompliant emissions that occurred while the source was operating above an emission limitation that was legally enforceable during the consecutive 24- month period.

( c) The average rate shall be adjusted downward to exclude any emissions

that would have exceeded an emission limitation with which the major stationary source must currently comply, had such major stationary source been required to comply with such limitations during the consecutive 24-month period. However, if an emission limitation is part of a

maximum achievable control technology standard that the Administrator proposed or promulgated under part 63 of this chapter, the baseline actual emissions need only be adjusted if the State has taken credit for

such emissions reductions in an

attainment demonstration or maintenance plan consistent with the requirements of § 51.165(a)(3)(ii)(G) of this chapter.

( d) For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-month period must be used to

determine the baseline actual emissions for all the emissions units being changed. A different consecutive 24- month period can be used For each regulated NSR pollutant.

( e) The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by paragraphs (b)(48)(ii)( b ) and ( c) of this section.

(iii) For a new emissions unit, the baseline actual emissions for purposes of determining the emissions increase

that will result from the initial construction and operation of such unit shall equal zero; and thereafter, for all other purposes, shall equal the unit ’ s potential to emit.

(iv) For a PAL for a stationary source,

the baseline actual emissions shall be calculated for existing electric utility steam generating units in accordance with the procedures contained in paragraph (b)(48)(i) of this section, for other existing emissions units in accordance with the procedures contained in paragraph (b)(48)(ii) of this
section, and for a new emissions unit in accordance with the procedures contained in paragraph (b)(48)(iii) of

this section.

(49) [Reserved] (50) Regulated NSR pollutant, for purposes of this section, means the following:

(i) Any pollutant for which a national ambient air quality standard has been promulgated and any constituents or precursors for such pollutants identified by the Administrator ( e.g. , volatile organic compounds are precursors for ozone);

(ii) Any pollutant that is subject to any standard promulgated under section
111 of the Act;

(iii) Any Class I or II substance subject to a standard promulgated under or established by title VI of the Act; or

(iv) Any pollutant that otherwise is subject to regulation under the Act; except that any or all hazardous air pollutants either listed in section 112 of the Act or added to the list pursuant to section 112(b)(2) of the Act, which have not been delisted pursuant to section 112(b)(3) of the Act, are not regulated NSR pollutants unless the listed hazardous air pollutant is also regulated as a constituent or precursor of a general pollutant listed under section 108 of the

Act.


### 80279 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

(51) Reviewing authority means the State air pollution control agency, local agency, other State agency, Indian tribe, or other agency authorized by the Administrator to carry out a permit program under § 51.165 and § 51.166 of this chapter, or the Administrator in the case of EPA-implemented permit programs under this section.

(52) Project means a physical change in, or change in the method of operation of, an existing major stationary source.

(53) Lowest achievable emission rate (LAER) is as defined in
§ 51.165(a)(1)(xiii) of this chapter.

(54) Reasonably available control technology (RACT) is as defined in
§ 51.100(o) of this chapter.

* * * * *

(i) Exemptions. * * *

* * * * *

(r) * * * (5) [Reserved] (6) The provisions of this paragraph (r)(6) apply to projects at an existing emissions unit at a major stationary source (other than projects at a Clean Unit or at a source with a PAL) in

circumstances where there is a reasonable possibility that a project that is not a part of a major modification may result in a significant emissions increase and the owner or operator elects to use the method specified in paragraphs (b)(41)(ii)( a ) through ( c) of this section for calculating projected actual

emissions.

(i) Before beginning actual construction of the project, the owner or operator shall document and maintain a record of the following information:

( a ) A description of the project; ( b ) Identification of the emissions unit(s) whose emissions of a regulated NSR pollutant could be affected by the project; and

( c) A description of the applicability test used to determine that the project is not a major modification for any regulated NSR pollutant, including the baseline actual emissions, the projected
actual emissions, the amount of emissions excluded under paragraph (b)(41)(ii)( c) of this section and an explanation for why such amount was excluded, and any netting calculations, if applicable.

(ii) If the emissions unit is an existing electric utility steam generating unit, before beginning actual construction, the owner or operator shall provide a copy of the information set out in paragraph (r)(6)(i) of this section to the Administrator. Nothing in this paragraph (r)(6)(ii) shall be construed to require the owner or operator of such a unit to obtain any determination from the Administrator before beginning

actual construction. (iii) The owner or operator shall monitor the emissions of any regulated NSR pollutant that could increase as a result of the project and that is emitted by any emissions unit identified in paragraph (r)(6)(i)( b ) of this section; and

calculate and maintain a record of the annual emissions, in tons per year on a calendar year basis, for a period of 5 years following resumption of regular operations after the change, or for a period of 10 years following resumption of regular operations after the change if the project increases the design capacity of or potential to emit that regulated NSR pollutant at such emissions unit.

(iv) If the unit is an existing electric utility steam generating unit, the owner or operator shall submit a report to the Administrator within 60 days after the end of each year during which records must be generated under paragraph (r)(6)(iii) of this section setting out the

unit ’ s annual emissions during the calendar year that preceded submission of the report.

(v) If the unit is an existing unit other than an electric utility steam generating unit, the owner or operator shall submit a report to the Administrator if the annual emissions, in tons per year, from the project identified in paragraph (r)(6)(i) of this section, exceed the baseline actual emissions (as documented and maintained pursuant to paragraph (r)(6)(i)( c) of this section), by a significant amount (as defined in paragraph (b)(23) of this section) for that regulated NSR pollutant, and if such

emissions differ from the preconstruction projection as documented and maintained pursuant to paragraph (r)(6)(i)( c) of this section. Such report shall be submitted to the Administrator within 60 days after the end of such year. The report shall contain the following:

( a ) The name, address and telephone number of the major stationary source;

( b) The annual emissions as calculated pursuant to paragraph (r)(6)(iii) of this section; and

( c) Any other information that the owner or operator wishes to include in the report (e.g., an explanation as to why the emissions differ from the preconstruction projection).

(7) The owner or operator of the

source shall make the information required to be documented and maintained pursuant to paragraph (r)(6) of this section available for review upon a request for inspection by the Administrator or the general public pursuant to the requirements contained

in § 70.4(b)(3)(viii) of this chapter.

* * * * *

(x) Clean Unit Test for emissions units that are subject to BACT or LAER. An owner or operator of a major stationary source has the option of using the Clean

Unit Test to determine whether

emissions increases at a Clean Unit are part of a project that is a major modification according to the provisions in paragraphs (x)(1) through (9) of this

section.

(1) Applicability. The provisions of this paragraph (x) apply to any emissions unit for which a reviewing authority has issued a major NSR permit within the last 10 years.

(2) General provisions for Clean Units. The provisions in paragraphs (x)(2)(i) through (iv) of this section apply to a

Clean Unit.

(i) Any project for which the owner or operator begins actual construction after

the effective date of the Clean Unit designation (as determined in accordance with paragraph (x)(4) of this section) and before the expiration date (as determined in accordance with paragraph (x)(5) of this section) will be

considered to have occurred while the

emissions unit was a Clean Unit.

(ii) If a project at a Clean Unit does not cause the need for a change in the emission limitations or work practice requirements in the permit for the unit that were adopted in conjunction with BACT and the project would not alter any physical or operational

characteristics that formed the basis for the BACT determination as specified in paragraph (x)(6)(iv) of this section, the

emissions unit remains a Clean Unit.

(iii) If a project causes the need for a change in the emission limitations or work practice requirements in the permit for the unit that were adopted in conjunction with BACT or the project would alter any physical or operational

characteristics that formed the basis for the BACT determination as specified in paragraph (x)(6)(iv) of this section, then the emissions unit loses its designation as a Clean Unit upon issuance of the necessary permit revisions (unless the unit re-qualifies as a Clean Unit pursuant to paragraph (x)(3)(iii) of this section). If the owner or operator begins actual construction on the project without first applying to revise the

emissions unit ’ s permit, the Clean Unit designation ends immediately prior to

the time when actual construction begins.

(iv) A project that causes an emissions unit to lose its designation as a Clean Unit is subject to the applicability requirements of paragraphs (a)(2)(iv)( a ) through ( d) and paragraph (a)(2)(iv)( f

) of

this section as if the emissions unit is

not a Clean Unit.

(3) Qualifying or re-qualifying to use the Clean Unit Applicability Test. An emissions unit automatically qualifies


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as a Clean Unit when the unit meets the criteria in paragraphs (x)(3)(i) and (ii) of this section. After the original Clean Unit expires in accordance with paragraph (x)(5) of this section or is lost pursuant to paragraph (x)(2)(iii) of thissection, such emissions unit may requalify as a Clean Unit under either paragraph (x)(3)(iii) of this section, or under the Clean Unit provisions inparagraph (y) of this section. To requalify as a Clean Unit under paragraph (x)(3)(iii) of this section, the emissions unit must obtain a new major NSR permit issued through the applicable PSD program and meet all the criteria in paragraph (x)(3)(iii) of this section. The Clean Unit designation applies individually for each pollutant emitted by the emissions unit.

(i) Permitting requirement. The

emissions unit must have received a major NSR permit within the last 10 years. The owner or operator must maintain and be able to provide

information that would demonstrate that this permitting requirement is met.

(ii) Qualifying air pollution control technologies. Air pollutant emissions

from the emissions unit must be reduced through the use of air pollution control technology (which includes pollution prevention as defined under paragraph (b)(39) of this section or work practices) that meets both the following requirements in paragraphs (x)(3)(ii)( a ) and ( b ) of this section.

( a ) The control technology achieves

the BACT or LAER level of emissions reductions as determined through issuance of a major NSR permit within the past 10 years. However, the emissions unit is not eligible for the Clean Unit designation if the BACT

determination resulted in no requirement to reduce emissions below
the level of a standard, uncontrolled, new emissions unit of the same type.

( b ) The owner or operator made an

investment to install the control technology. For the purpose of this
determination, an investment includes expenses to research the application of a pollution prevention technique to the emissions unit or expenses to apply a pollution prevention technique to an

emissions unit.

(iii) Re-qualifying for the Clean Unit designation. The emissions unit must obtain a new major NSR permit thatrequires compliance with the currentday BACT (or LAER), and the emissions unit must meet the requirements in paragraphs (x)(3)(i) and (x)(3)(ii) of this

section.

(4) Effective date of the Clean Unit designation. The effective date of an

emissions unit ’ s Clean Unit designation (that is, the date on which the owner or operator may begin to use the Clean Unit Test to determine whether a project at the emissions unit is a major modification) is determined according to the applicable paragraph (x)(4)(i) or (x)(4)(ii) of this section.

(i) Original Clean Unit designation, and emissions units that re-qualify as Clean Units by implementing new control technology to meet current-day

BACT. The effective date is the date the

emissions unit ’ s air pollution control technology is placed into service, or 3 years after the issuance date of the major NSR permit, whichever is earlier, but no sooner than March 3, 2003, that is the date these provisions become effective.

(ii) Emissions units that re-qualify for the Clean Unit designation using an existing control technology. The effective date is the date the new, major NSR permit is issued.

(5) Clean Unit expiration. An

emissions unit ’ s Clean Unit designation expires (that is, the date on which the owner or operator may no longer use the

Clean Unit Test to determine whether a project affecting the emissions unit is, or is part of, a major modification) according to the applicable paragraph (x)(5)(i) or (ii) of this section.

(i) Original Clean Unit designation, and emissions units that re-qualify by implementing new control technology to meet current-day BACT. For any emissions unit that automatically qualifies as a Clean Unit under paragraphs (x)(3)(i) and (ii) of this section or re-qualifies by implementingnew control technology to meet currentday BACT under paragraph (x)(3)(iii) of this section, the Clean Unit designation expires 10 years after the effective date, or the date the equipment went into
service, whichever is earlier; or, it expires at any time the owner or operator fails to comply with the provisions for maintaining the Clean Unit designation in paragraph (x)(7) of

this section.

(ii) Emissions units that re-qualify for the Clean Unit designation using an existing control technology. For any emissions unit that re-qualifies as a Clean Unit under paragraph (x)(3)(iii) of this section using an existing control technology, the Clean Unit designation expires 10 years after the effective date; or, it expires any time the owner or operator fails to comply with the provisions for maintaining the Clean Unit designation in paragraph (x)(7) of

this section.

(6) Required title V permit content for

a Clean Unit. After the effective date of the Clean Unit designation, and in accordance with the provisions of the applicable title V permit program under part 70 or part 71 of this chapter, but no later than when the title V permit is renewed, the title V permit for the major stationary source must include the following terms and conditions in paragraphs (x)(6)(i) through (vi) of this

section related to the Clean Unit.

(i) A statement indicating that the emissions unit qualifies as a Clean Unit and identifying the pollutant(s) for which this designation applies.

(ii) The effective date of the Clean Unit designation. If this date is not known when the Clean Unit designation is initially recorded in the title V permit ( e.g., because the air pollution control technology is not yet in service), the permit must describe the event that will determine the effective date ( e.g., the date the control technology is placed into service). Once the effective date is determined, the owner or operator must notify the Administrator of the exact date. This specific effective date must be

added to the source ’ s title V permit at the first opportunity, such as a modification, revision, reopening, or renewal of the title V permit for any
reason, whichever comes first, but in no

case later than the next renewal.

(iii) The expiration date of the Clean Unit designation. If this date is not known when the Clean Unit designation is initially recorded into the title V permit ( e.g., because the air pollution control technology is not yet in service), then the permit must describe the event that will determine the expiration date ( e.g., the date the control technology is placed into service). Once the expiration
date is determined, the owner or operator must notify the Administrator of the exact date. The expiration date

must be added to the source ’ s title V permit at the first opportunity, such as a modification, revision, reopening, or renewal of the title V permit for any
reason, whichever comes first, but in no

case later than the next renewal.

(iv) All emission limitations and work practice requirements adopted in conjunction with BACT, and any physical or operational characteristics

which formed the basis for the BACT determination ( e.g., possibly the

emissions unit ’ s capacity or throughput).

(v) Monitoring, recordkeeping, and reporting requirements as necessary to

demonstrate that the emissions unit

continues to meet the criteria for maintaining the Clean Unit designation. (See paragraph (x)(7) of this section.)

(vi) Terms reflecting the owner or

operator ’ s duties to maintain the Clean Unit designation and the consequences of failing to do so, as presented in paragraph (x)(7) of this section.

(7) Maintaining the Clean Unit designation. To maintain the Clean Unit


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designation, the owner or operator must

conform to all the restrictions listed in paragraphs (x)(7)(i) through (iii) of this section. This paragraph (x)(7) applies independently to each pollutant for

which the emissions unit has the Clean Unit designation. That is, failing to

conform to the restrictions for one pollutant affects the Clean Unit designation only for that pollutant.

(i) The Clean Unit must comply with the emission limitation(s) and/or work practice requirements adopted in conjunction with the BACT that is recorded in the major NSR permit, and subsequently reflected in the title V permit. The owner or operator may not make a physical change in or change in the method of operation of the Clean

Unit that causes the emissions unit to

function in a manner that is inconsistent with the physical or operational

characteristics that formed the basis for the BACT determination ( e.g., possibly

the emissions unit ’ s capacity or throughput).

(ii) The Clean Unit must comply with any terms and conditions in the title V permit related to the unit ’ s Clean Unit designation.

(iii) The Clean Unit must continue to control emissions using the specific air pollution control technology that was the basis for its Clean Unit designation.

If the emissions unit or control technology is replaced, then the Clean Unit designation ends.

(8) Netting at Clean Units. Emissions changes that occur at a Clean Unit must not be included in calculating a significant net emissions increase (that is, must not be used in a ‘‘ netting analysis ’’ ), unless such use occurs

before the effective date of the Clean Unit designation, or after the Clean Unit designation expires; or, unless the

emissions unit reduces emissions below the level that qualified the unit as a
Clean Unit. However, if the Clean Unit

reduces emissions below the level that qualified the unit as a Clean Unit, then the owner or operator may generate a

credit for the difference between the level that qualified the unit as a Clean

Unit and the new emissions limit if such reductions are surplus, quantifiable, and permanent. For purposes of generating offsets, the reductions must also be federally enforceable. For purposes of determining creditable net emissions
increases and decreases, the reductions must also be enforceable as a practical

matter.

(9) Effect of redesignation on the Clean Unit designation. The Clean Unit designation of an emissions unit is not affected by re-designation of the

attainment status of the area in which it is located. That is, if a Clean Unit is

located in an attainment area and the area is redesignated to nonattainment, its Clean Unit designation is not affected. Similarly, redesignation from

nonattainment to attainment does not affect the Clean Unit designation. However, if an existing Clean Unit designation expires, it must re-qualify under the requirements that are currently applicable in the area.

(y) Clean Unit provisions for

emissions units that achieve an emission limitation comparable to

BACT. An owner or operator of a major stationary source has the option of using

the Clean Unit Test to determine

whether emissions increases at a Clean Unit are part of a project that is a major modification according to the provisions in paragraphs (y)(1) through (11) of this

section.

(1) Applicability. The provisions of this paragraph (y) apply to emissions units which do not qualify as Clean Units under paragraph (x) of this section, but which are achieving a level of emissions control comparable to BACT, as determined by the

Administrator in accordance with this paragraph (y).

(2) General provisions for Clean Units. The provisions in paragraphs (y)(2)(i) through (iv) of this section apply to a Clean Unit (designated under this paragraph (y)).

(i) Any project for which the owner or operator begins actual construction after

the effective date of the Clean Unit designation (as determined in accordance with paragraph (y)(5) of this section) and before the expiration date (as determined in accordance with paragraph (y)(6) of this section) will be

considered to have occurred while the

emissions unit was a Clean Unit.

(ii) If a project at a Clean Unit does not cause the need for a change in the emission limitations or work practice requirements in the permit for the unit that have been determined (pursuant to paragraph (y)(4) of this section) to be comparable to BACT, and the project would not alter any physical or operational characteristics that formed the basis for determining that the

emissions unit ’ s control technology

achieves a level of emissions control comparable to BACT as specified in paragraph (y)(8)(iv) of this section, the

emissions unit remains a Clean Unit.

(iii) If a project causes the need for a change in the emission limitations or work practice requirements in the permit for the unit that have been determined (pursuant to paragraph (y)(4) of this section) to be comparable to BACT, or the project would alter any physical or operational characteristics that formed the basis for determining

that the emissions unit ’ s control technology achieves a level of emissions control comparable to BACT as specified in paragraph (y)(8)(iv) of this section, then the emissions unit loses its designation as a Clean Unit upon issuance of the necessary permit revisions (unless the unit re-qualifies as a Clean Unit pursuant to paragraph (u)(3)(iv) of this section). If the owner or operator begins actual construction on the project without first applying to

revise the emissions unit ’ s permit, the Clean Unit designation ends immediately prior to the time when actual construction begins.

(iv) A project that causes an emissions unit to lose its designation as a Clean Unit is subject to the applicability requirements of paragraphs (a)(2)(iv)( a ) through ( d) and paragraph (a)(2)(iv)( f

) of

this section as if the emissions unit is

not a Clean Unit.

(3) Qualifying or re-qualifying to use the Clean Unit applicability test. An emissions unit qualifies as a Clean Unit

when the unit meets the criteria in paragraphs (y)(3)(i) through (iii) of this section. After the original Clean Unit designation expires in accordance with paragraph (y)(6) of this section or is lost pursuant to paragraph (y)(2)(iii) of thissection, such emissions unit may requalify as a Clean Unit under either paragraph (y)(3)(iv) of this section, or under the Clean Unit provisions inparagraph (x) of this section. To requalify as a Clean Unit under paragraph (y)(3)(iv) of this section, the emissions unit must obtain a new permit issued pursuant to the requirements in paragraphs (y)(7) and (8) of this section and meet all the criteria in paragraph (y)(3)(iv) of this section. The Administrator will make a separate Clean Unit designation for each pollutant emitted by the emissions unit for which the emissions unit qualifies as

a Clean Unit.

(i) Qualifying air pollution control technologies. Air pollutant emissions

from the emissions unit must be reduced through the use of air pollution control technology (which includes pollution prevention as defined under paragraph (b)(39) of this section or work practices) that meets both the following requirements in paragraphs (y)(3)(i)( a ) and ( b) of this section.

( a ) The owner or operator has

demonstrated that the emissions unit ’ s control technology is comparable to BACT according to the requirements of paragraph (y)(4) of this section.
However, the emissions unit is not eligible for a Clean Unit designation if

its emissions are not reduced below the
level of a standard, uncontrolled


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emissions unit of the same type ( e.g., if

the BACT determinations to which it is compared have resulted in a

determination that no control measures are required).

( b ) The owner or operator made an

investment to install the control technology. For the purpose of this determination, an investment includes expenses to research the application of a pollution prevention technique to the

emissions unit or to retool the unit to apply a pollution prevention technique.

(ii) Impact of emissions from the unit.

The Administrator must determine that

the allowable emissions from the

emissions unit will not cause or contribute to a violation of any national ambient air quality standard or PSD increment, or adversely impact an air quality related value (such as visibility)

that has been identified for a Federal Class I area by a Federal Land Manager

and for which information is available to the general public.

(iii) Date of installation. An emissions unit may qualify as a Clean Unit even if the control technology, on which the Clean Unit designation is based, was installed before March 3, 2003. However, for such emissions units, the owner or operator must apply for the Clean Unit designation before December 31, 2004. For technologies installed on and after March 3, 2003, the owner or operator must apply for the Clean Unit designation at the time the control technology is installed.

(iv) Re-qualifying as a Clean Unit. The

emissions unit must obtain a new permit (pursuant to requirements in paragraphs (y)(7) and (8) of this section)

that demonstrates that the emissions

unit ’ s control technology is achieving a level of emission control comparable to current-day BACT, and the emissions unit must meet the requirements in paragraphs (y)(3)(i)(a) and (y)(3)(ii) of

this section.

(4) Demonstrating control effectiveness comparable to BACT. The owner or operator may demonstrate that

the emissions unit ’ s control technology is comparable to BACT for purposes of paragraph (y)(3)(i) of this section according to either paragraph (y)(4)(i) or (ii) of this section. Paragraph (y)(4)(iii) of this section specifies the time for making this comparison.

(i) Comparison to previous BACT and

LAER determinations. The

Administrator maintains an on-line data base of previous determinations of
RACT, BACT, and LAER in the RACT/ BACT/LAER Clearinghouse (RBLC). The

emissions unit ’ s control technology is presumed to be comparable to BACT if

it achieves an emission limitation that is equal to or better than the average of the emission limitations achieved by all the

sources for which a BACT or LAER

determination has been made within the preceding 5 years and entered into the RBLC, and for which it is technically feasible to apply the BACT or LAER control technology to the emissions

unit. The Administrator shall also compare this presumption to any

additional BACT or LAER

determinations of which he or she is aware, and shall consider any information on achieved-in-practice pollution control technologies provided during the public comment period, to determine whether any presumptive

determination that the control technology is comparable to BACT is

correct.

(ii) The substantially-as-effective test. The owner or operator may demonstrate

that the emissions unit ’ s control technology is substantially as effective as BACT. In addition, any other person may present evidence related to whether the control technology is substantially as effective as BACT during the public participation process required under paragraph (y)(7) of this section. The

Administrator shall consider such evidence on a case-by-case basis and

determine whether the emissions unit ’ s air pollution control technology is substantially as effective as BACT.

(iii) Time of comparison. ( a ) Emissions units with control technologies that are installed before March 3, 2003. The owner or operator

of an emissions unit whose control technology is installed before March 3, 2003 may, at its option, either

demonstrate that the emission limitation achieved by the emissions unit ’ s control technology is comparable to the BACT requirements that applied at the time the control technology was installed, or

demonstrate that the emission limitation achieved by the emissions unit ’ s control technology is comparable to current-day BACT requirements. The expiration date of the Clean Unit designation will depend on which option the owner or operator uses, as specified in paragraph (y)(6) of this section.

( b) Emissions units with control technologies that are installed on and after March 3, 2003. The owner or operator must demonstrate that the emission limitation achieved by the

emissions unit ’ s control technology is comparable to current-day BACT requirements.

(5) Effective date of the Clean Unit designation. The effective date of an

emissions unit ’ s Clean Unit designation (that is, the date on which the owner or operator may begin to use the Clean Unit Test to determine whether a project involving the emissions unit is a major modification) is the date that the permit required by paragraph (y)(7) of this

section is issued or the date that the

emissions unit ’ s air pollution control technology is placed into service,

whichever is later.

(6) Clean Unit expiration. If the owner or operator demonstrates that the emission limitation achieved by the

emissions unit ’ s control technology is comparable to the BACT requirements that applied at the time the control technology was installed, then the Clean Unit designation expires 10 years from the date that the control technology was installed. For all other emissions units, the Clean Unit designation expires 10 years from the effective date of the Clean Unit designation, as determined according to paragraph (y)(5) of this section. In addition, for all emissions units, the Clean Unit designation expires any time the owner or operator fails to comply with the provisions for maintaining the Clean Unit designation in paragraph (y)(9) of this section.

(7) Procedures for designating

emissions units as Clean Units. The Administrator shall designate an emissions unit a Clean Unit only by issuing a permit through a permitting program that has been approved by the

Administrator and that conforms with the requirements of §§ 51.160 through 51.164 of this chapter including requirements for public notice of the proposed Clean Unit designation and opportunity for public comment. Such permit must also meet the requirements in paragraph (y)(8) of this section.

(8) Required permit content. The permit required by paragraph (y)(7) of

this section shall include the terms and conditions set forth in paragraphs (y)(8)(i) through (vi) of this section.

Such terms and conditions shall be incorporated into the major stationary

source ’ s title V permit in accordance with the provisions of the applicable title V permit program under part 70 or part 71 of this chapter, but no later than when the title V permit is renewed.

(i) A statement indicating that the emissions unit qualifies as a Clean Unit and identifying the pollutant(s) for which this designation applies.

(ii) The effective date of the Clean Unit designation. If this date is not

known when the Administrator issues the permit ( e.g. , because the air pollution control technology is not yet in service), then the permit must

describe the event that will determine the effective date ( e.g. , the date the control technology is placed into service). Once the effective date is known, then the owner or operator must notify the Administrator of the exact date. This specific effective date must be


### 80283 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

added to the source ’ s title V permit at the first opportunity, such as a modification, revision, reopening, or renewal of the title V permit for any reason, whichever comes first, but in no

case later than the next renewal.

(iii) The expiration date of the Clean Unit designation. If this date is not

known when the Administrator issues the permit ( e.g. , because the air pollution control technology is not yet in service), then the permit must

describe the event that will determine the expiration date ( e.g. , the date the control technology is placed into service). Once the expiration date is known, then the owner or operator must notify the Administrator of the exact date. The expiration date must be added

to the source ’ s title V permit at the first opportunity, such as a modification, revision, reopening, or renewal of the title V permit for any reason, whichever comes first, but in no case later than the

next renewal.

(iv) All emission limitations and work practice requirements adopted in conjunction with emission limitations necessary to assure that the control technology continues to achieve an emission limitation comparable to BACT, and any physical or operational

characteristics that formed the basis for determining that the emissions unit ’ s control technology achieves a level of emissions control comparable to BACT ( e.g. , possibly the emissions unit ’ s capacity or throughput).

(v) Monitoring, recordkeeping, and reporting requirements as necessary to

demonstrate that the emissions unit

continues to meet the criteria for maintaining its Clean Unit designation. (See paragraph (y)(9) of this section.)

(vi) Terms reflecting the owner or

operator ’ s duties to maintain the Clean Unit designation and the consequences of failing to do so, as presented in paragraph (y)(9) of this section.

(9) Maintaining a Clean Unit designation. To maintain the Clean Unit designation, the owner or operator must

conform to all the restrictions listed in paragraphs (y)(9)(i) through (v) of this section. This paragraph (y)(9) applies independently to each pollutant for which the Administrator has designated
the emissions unit a Clean Unit. That is, failing to conform to the restrictions for one pollutant affects the Clean Unit designation only for that pollutant.

(i) The Clean Unit must comply with the emission limitation(s) and/or work practice requirements adopted to ensure that the control technology continues to achieve emission control comparable to

BACT.

(ii) The owner or operator may not make a physical change in or change in the method of operation of the Clean

Unit that causes the emissions unit to

function in a manner that is inconsistent with the physical or operational

characteristics that formed the basis for

the determination that the control technology is achieving a level of emission control that is comparable to BACT ( e.g. , possibly the emissions

unit ’ s capacity or throughput).

(iii) [Reserved] (iv) The Clean Unit must comply with any terms and conditions in the title V permit related to the unit ’ s Clean Unit designation.

(v) The Clean Unit must continue to control emissions using the specific air pollution control technology that was the basis for its Clean Unit designation.

If the emissions unit or control technology is replaced, then the Clean Unit designation ends.

(10) Netting at Clean Units. Emissions changes that occur at a Clean Unit must not be included in calculating a significant net emissions increase (that
is, must not be used in a ‘‘ netting analysis ’’ ) unless such use occurs before
March 3, 2003 or after the Clean Unit designation expires; or, unless the

emissions unit reduces emissions below the level that qualified the unit as a
Clean Unit. However, if the Clean Unit

reduces emissions below the level that qualified the unit as a Clean Unit, then the owner or operator may generate a

credit for the difference between the level that qualified the unit as a Clean

Unit and the emissions unit ’ s new emissions limit if such reductions are surplus, quantifiable, and permanent. For purposes of generating offsets, the reductions must also be federally enforceable. For purposes of determining creditable net emissions
increases and decreases, the reductions must also be enforceable as a practical

matter.

(11) Effect of redesignation on a Clean Unit designation. The Clean Unit designation of an emissions unit is not affected by redesignation of the

attainment status of the area in which it
is located. That is, if a Clean Unit is

located in an attainment area and the area is redesignated to nonattainment, its Clean Unit designation is not affected. Similarly, redesignation from

nonattainment to attainment does not affect the Clean Unit designation.
However, if a Clean Unit ’ s designation expires or is lost pursuant to paragraphs (x)(2)(iii) and (y)(2)(iii) of this section, it must re-qualify under the requirements that are currently applicable.

(z) PCP exclusion procedural requirements. PCPs shall be provided according to the provisions in paragraphs (z)(1) through (6) of this

section.

(1) Before an owner or operator begins actual construction of a PCP, the owner or operator must either submit a notice to the Administrator if the project is listed in paragraphs (b)(32)(i) through (vi) of this section, or if the project is not listed in paragraphs (b)(32)(i) through (vi) of this section, then the owner or operator must submit a permit application and obtain approval to use

the PCP exclusion from the

Administrator consistent with the requirements in paragraph (z)(5) of this section. Regardless of whether the owner or operator submits a notice or a permit application, the project must meet the requirements in paragraph (z)(2) of this section, and the notice or permit application must contain the information required in paragraph (z)(3)

of this section.

(2) Any project that relies on the PCP exclusion must meet the requirements of paragraphs (z)(2)(i) and (ii) of this

section.

(i) Environmentally beneficial analysis. The environmental benefit

from the emissions reductions of pollutants regulated under the Act must outweigh the environmental detriment of emissions increases in pollutants regulated under the Act. A statement that a technology from paragraphs (b)(32)(i) through (vi) of this section is being used shall be presumed to satisfy this requirement.

(ii) Air quality analysis. The emissions increases from the project

will not cause or contribute to a violation of any national ambient air quality standard or PSD increment, or adversely impact an air quality related value (such as visibility) that has been identified for a Federal Class I area by a Federal Land Manager and for which information is available to the general public.

(3) Content of notice or permit application. In the notice or permit application sent to the Administrator, the owner or operator must include, at
a minimum, the information listed in paragraphs (z)(3)(i) through (v) of this

section.

(i) A description of the project. (ii) The potential emissions increases and decreases of any pollutant regulated under the Act and the projected emissions increases and decreases using the methodology in paragraph (a)(2)(iv)
of this section, that will result from the project, and a copy of the environmentally beneficial analysis required by paragraph (z)(2)(i) of this

section.

(iii) A description of monitoring and recordkeeping, and all other methods, to


### 80284 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations

be used on an ongoing basis to demonstrate that the project is environmentally beneficial. Methods

should be sufficient to meet the requirements in part 70 and part 71 of this chapter.

(iv) A certification that the project will be designed and operated in a manner that is consistent with proper industry and engineering practices, in a

manner that is consistent with the environmentally beneficial analysis and air quality analysis required by paragraphs (z)(2)(i) and (ii) of this
section, with information submitted in the notice or permit application, and in such a way as to minimize, within the physical configuration and operational standards usually associated with the emissions control device or strategy, emissions of collateral pollutants.

(v) Demonstration that the PCP will not have an adverse air quality impact ( e.g. , modeling, screening level modeling results, or a statement that the

collateral emissions increase is included within the parameters used in the most recent modeling exercise) as required by paragraph (z)(2)(ii) of this section. An air quality impact analysis is not required for any pollutant that will not experience a significant emissions increase as a result of the project.

(4) Notice process for listed projects. For projects listed in paragraphs (b)(32)(i) through (vi) of this section, the owner or operator may begin actual construction of the project immediately

after notice is sent to the Administrator (unless otherwise prohibited under requirements of the applicable State Implementation Plan). The owner or operator shall respond to any requests by the Administrator for additional

information that the Administrator determines is necessary to evaluate the suitability of the project for the PCP

exclusion.

(5) Permit process for unlisted projects. Before an owner or operator may begin actual construction of a PCP project that is not listed in paragraphs (b)(32)(i) through (vi) of this section, the project must be approved by the

Administrator and recorded in a State Implementation Plan-approved permit or title V permit using procedures that

are consistent with §§ 51.160 and 51.161 of this chapter. This includes the requirement that the Administrator provide the public with notice of the proposed approval, with access to the environmentally beneficial analysis and the air quality analysis, and provide at least a 30-day period for the public and

the Administrator to submit comments.

The Administrator must address all material comments received by the end of the comment period before taking final action on the permit.

(6) Operational requirements. Upon installation of the PCP, the owner or operator must comply with the requirements of paragraphs (z)(6)(i) through (iv) of this section.

(i) General duty. The owner or operator must operate the PCP in a manner consistent with proper industry and engineering practices, in a manner

that is consistent with the environmentally beneficial analysis and air quality analysis required by paragraphs (z)(2)(i) and (ii) of this section, with information submitted in the notice or permit application required by paragraph (z)(3) of this section, and in such a way as to minimize, within the physical configuration and operational standards usually associated with the emissions control device or strategy, emissions of collateral pollutants.

(ii) Recordkeeping. The owner or operator must maintain copies on site of the environmentally beneficial analysis, the air quality impacts analysis, and monitoring and other emission records to prove that the PCP operated consistent with the general duty requirements in paragraph (z)(6)(i) of

this section.

(iii) Permit requirements. The owner or operator must comply with any provisions in the State Implementation Plan-approved permit or title V permit related to use and approval of the PCP

exclusion.

(iv) Generation of emission reduction

credits. Emission reductions created by

a PCP shall not be included in calculating a significant net emissions

increase unless the emissions unit

further reduces emissions after qualifying for the PCP exclusion ( e.g.

, taking an operational restriction on the hours of operation). The owner or operator may generate a credit for the

difference between the level of reduction which was used to qualify for

the PCP exclusion and the new

emissions limit if such reductions are surplus, quantifiable, and permanent. For purposes of generating offsets, the reductions must also be federally enforceable. For purposes of determining creditable net emissions
increases and decreases, the reductions must also be enforceable as a practical

matter.

(aa) Actuals PALs. The provisions in paragraphs (aa)(1) through (15) of this section govern actuals PALs.

(1) Applicability. (i) The Administrator may approve the use of an actuals PAL for any existing major stationary source if the PAL meets the requirements in paragraphs (aa)(1) through (15) of this

section. The term ‘‘ PAL ’’ shall mean

‘‘ actuals PAL ’’ throughout paragraph (aa) of this section.

(ii) Any physical change in or change in the method of operation of a major stationary source that maintains its total

source-wide emissions below the PAL level, meets the requirements in paragraphs (aa)(1) through (15) of this section, and complies with the PAL permit:

( a ) Is not a major modification for the PAL pollutant;

( b ) Does not have to be approved through the PSD program; and

( c) Is not subject to the provisions in paragraph (r)(4) of this section (restrictions on relaxing enforceable emission limitations that the major stationary source used to avoid applicability of the major NSR program).

(iii) Except as provided under paragraph (aa)(1)(ii)( c) of this section, a major stationary source shall continue to comply with all applicable Federal or State requirements, emission limitations, and work practice requirements that were established prior

to the effective date of the PAL.

(2) Definitions. For the purposes of
this section, the definitions in paragraphs (aa)(2)(i) through (xi) of this section apply. When a term is not defined in these paragraphs, it shall have the meaning given in paragraph (b)

of this section or in the Act.

(i) Actuals PAL for a major stationary

source means a PAL based on the baseline actual emissions (as defined in paragraph (b)(48) of this section) of all emissions units (as defined in paragraph (b)(7) of this section) at the source, that emit or have the potential to emit the PAL pollutant.

(ii) Allowable emissions means

‘‘ allowable emissions ’’ as defined in paragraph (b)(16) of this section, except as this definition is modified according to paragraphs (aa)(2)(ii)( a ) and ( b) of this

section.

( a ) The allowable emissions for any

emissions unit shall be calculated considering any emission limitations that are enforceable as a practical matter

on the emissions unit ’ s potential to

emit.

( b ) An emissions unit ’ s potential to emit shall be determined using the definition in paragraph (b)(4) of this section, except that the words ‘‘ or enforceable as a practical matter ’’

should be added after ‘‘ federally

enforceable. ’’

(iii) Small emissions unit means an emissions unit that emits or has the potential to emit the PAL pollutant in an amount less than the significant level for that PAL pollutant, as defined in